COURT FILE NO.: FS-20-17282
DATE: 20210513
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Carly Wilson, Applicant
AND:
Otis Wilson, Respondent
BEFORE: Kiteley J.
COUNSEL: Natalie Derbyshire, counsel for the Applicant
Anthony Macri, counsel for the Respondent
HEARD: April 15, 2021
ENDORSEMENT
[1] On Tuesday April 13, 2021 I heard submissions on the motion by the Applicant for an order requiring the Respondent to pay to the Applicant the proceeds of a mortgage advance in partial satisfaction of the equalization payment owing to the Applicant and related orders. In an endorsement dated April 14, 2021, I made orders arising from that urgent motion, namely that, by April 15, 2021 at 5:00 p.m. the Respondent was required to deposit the sum of $320,000 (from the advance of $410,000) to Mr. Macri’s trust account to be deposited to a financial institution in the joint names of Mr. Macri and Ms. Derbyshire in trust to the credit of the action; by April 27, 2021, the Respondent was required to provide specified disclosure including an accounting and tracing of the mortgage proceeds.
[2] On Thursday April 15, 2021 I heard submissions on these motions:
(a) the Respondent’s motion for an order that the Applicant pay temporary child support in the amount of $1,215 per month commencing on May 1, 2021; and for an order for temporary spousal support in the amount of $1,604 per month commencing on May 1, 2021;
(b) the Applicant’s cross-motion for an order that the Respondent pay child support to the Applicant in the amount of $2256 per month and the Applicant pay child support to the Respondent in the amount of $1723 per month, leaving set-off child support owing by the Respondent to the Applicant in the amount of $533 per month payable by the Respondent to the Applicant;
(c) the Applicant’s motion for an assessment pursuant to s. 30 of the Children’s Law Reform Act;
(d) the Respondent’s cross-motion to strike paragraphs from the Applicant’s affidavit sworn April 6, 2021 as constituting hearsay; and for an order varying the temporary order dated August 24, 2020 to require the children to attend in-class schooling at CR Public School in Toronto as soon as school resumes or in September 2021, whichever is earlier.
[3] Since the Toronto District School Board had ordered closure of all schools, the Respondent adjourned his motion with respect to school attendance. I indicated that I considered it premature in any event because of the likely evolution of in-person and on-line schooling between the hearing of the motion and the beginning of school in September 2021.
[4] These motions had all been scheduled as one “regular” motion, namely for an estimated one hour. I declined to hear the Respondent’s motion to strike paragraphs from the Applicant’s affidavit sworn April 6, 2021. The Respondent objected to statements by the Applicant purportedly quoting what the children had said. In his notice of motion he had not identified the specific paragraphs and objectionable statements and I was not prepared to take the time to have them enumerated. Furthermore, the Respondent had filed the affidavit of his niece which included statements purportedly made by the children. If the statements were struck from the Applicant’s affidavit, it would require a similar analysis and striking of statements from the niece’s affidavit. Without hearing submissions by the Applicant, I did agree that the statements in the Applicant’s affidavit purportedly quoting from the investigator or the investigator’s report were hearsay and I have not relied on them.
Background
[5] The Applicant and Respondent began cohabiting in 2007 and married in January 2012. The separation occurred on June 1, 2020 when the Applicant left with the children who were then 8 years and 6 years old. The Applicant has resided with her parents in Aurora while the Respondent has remained in the former matrimonial home in Scarborough.
[6] The Application was issued on July 15, 2020. In an endorsement dated July 17, 2020, the case conference was scheduled for July 29, 2020 at which time Diamond J. made an order on consent allowing the Applicant to deliver her Amended Application on or before August 4, 2020, allowing the Respondent to deliver his Answer on or before August 14, 2020, modifying the parenting schedule, and enabling motions to be brought, including the Respondent’s motion for spousal support.
[7] The Application was amended. The Answer was delivered on August 13, 2020 and the Reply was filed on August 24, 2020.
[8] On August 20, 2020, Boucher J. heard the Applicant’s motions for a restraining order and for a parenting order and the Respondent’s motion for a parenting order. On August 24, 2020, she released her endorsement in which she dismissed the motion by the Applicant for a restraining order, she dismissed the Respondent’s motion for an order that the children attend school in-person in his catchment area, she made a parenting order that provided for equal time with each parent on a 5-5-2-2 schedule, she dismissed the Applicant’s motion for an order that she have a right of first refusal, she directed the parties to communicate through Our Family Wizard and she ordered that neither parent make disparaging comments about the other.
[9] One of the urgent issues before Boucher J. was whether the children would attend school on-line or in person. Before the separation, the children attended CR Public School and would have resumed in grades 1 and 3. The Applicant, who lived in Aurora, took the position that the children should participate on-line. The Respondent took the position that the children should attend in person at CR Public School. In her endorsement, Boucher J. made a temporary order (i.e. for the school year commencing September, 2021) that the children attend school on-line.
[10] In an endorsement dated September 4, 2020, Boucher J. ordered the Applicant to pay costs in the amount of $8000 within 60 days.
[11] The parties attended a case conference on November 20, 2020 with Diamond J.
Applicant’s motion for a preservation order
[12] The Respondent brought a motion returnable April 15, 2021 for temporary child and spousal support. In support of that motion, the Respondent delivered an affidavit sworn March 23, 2021 and an updated form 13.1 financial statement. In that material, he disclosed for the first time that he had registered a mortgage against title to the matrimonial home in the amount of $410,000. When the Respondent did not provide immediate disclosure as requested, the Applicant brought a motion for a preservation order and for disclosure.
[13] That motion came before me as an urgent matter on Tuesday April 13, 2021.
[14] In an endorsement dated April 14, 2021, I made the order summarized in paragraph 1 above.
[15] The evidence filed in relation to that urgent motion was referred to in the hearing of the motions on April 15, 2021.
Respondent’s motion for temporary spousal support
[16] In the endorsement dated July 29, 2020, the Respondent was authorized to bring a motion for temporary spousal support and or temporary child support. His notice of motion is dated March 23, 2021 and was returnable April 15, 2021.
A. Basis of the claim by the Respondent that he is entitled to spousal support
[17] Pursuant to s. 15.2(4) of the Divorce Act, in making an order or an interim order for spousal support, the court shall take into consideration the condition, means, needs and other circumstances of each spouse including the length of time the spouses cohabited; the functions performed by each spouse during cohabitation and any order, agreement or arrangement relating to support of either spouse. Pursuant to s. 15.2(6), in making an order or an interim order, the court should consider the following objectives: recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; 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; relieve any economic hardship of the spouses arising from the breakdown of the marriage; and, in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[18] The threshold issue is whether the Respondent is entitled to spousal support.
[19] The Respondent takes the position that he has demonstrated disparate incomes between the Applicant and the Respondent and has demonstrated economic need and therefore he has established entitlement to spousal support. The Applicant takes the position that the Court should impute income to the Respondent and that that would demonstrate that he is not entitled to spousal support.
[20] Because of that narrow focus of the basis for entitlement, the affidavit of the Respondent sworn March 23, 2021 in support of his motion is sparse, to say the least. The only exhibit to his affidavit is a DivorceMate calculation. His form 13.1 financial statement that he had served sworn March 22 was corrected on April 9, 2021 to include a balance in his bank of $410,000, being the funds advanced by the mortgagee. On page 2, he has checked off the box that he was attaching all the required documents over the past three years. None were attached. He has not provided a T4 or income tax return for 2020.
B. Income of the Respondent
[21] The Respondent is employed by the City of Toronto as a seasonal worker. In his affidavit sworn March 23, the Respondent deposed as follows:
I have three part-time jobs. My first part-time job is with the City of Toronto, Parks and Recreation as a Park Handy Worker. I cut the grass and clean the litter at A. Park, very near our home. I have lunch at home and take my breaks at home. I normally work from the end of March until the end of October at this job. It is from 6:00 a.m. until 2:00 p.m. Thursday to Monday – I have Tuesday and Wednesdays off. Because of Covid, I was asked to return to work early in December 2020.
To supplement this income, in the winter I have a small business clearing snow and salting people property. I have earned no income from this work in the past year.
My third part-time job is a garden supply business, Green Ivy, for people who wish to grow their own medical marijuana. This has very flexible hours and I used to work approximately 1 to 2 hours a day at this. However, since September 2020, this business has been closed and I have not earned any income. The business had to close due to the pandemic’s restrictions on businesses. I have not been able to re-start this business and I do not believe that I will ever be able to since part of my business was to go to client’s homes to show them how to set-up the equipment. Since home entry is now a dangerous thing, clients are not receptive to this service.
In addition, since Carly left the marriage in June 2020, I have had to be home with our children on my parenting time days so would not have been able to work on the business in any event.
Since separation, my income has only been through my work with the City of Toronto and Employment Insurance when I was off work. In 2020, I earned $43,199.25 through the City of Toronto. I received $6841 from Employment Insurance for being off work from January to April 2020 and for a 5-week period from October 26, 2020 to December 2, 2020.
At my City of Toronto job, I earn $27.81 per hour at 40 hours per week. If I work a full year, the most I would earn is $57,844.80. However, since I am a seasonal worker, I do not work a full year and I am on employment insurance for part of the year. . . .
In light of the disparity in our income, there is no doubt that I require spousal support to maintain the lifestyle the children were accustomed to while the marriage was together. As can be seen from my financial statement my expenses exceed my ability to pay those expenses. I have to rely on the kindness and generosity of my family to assist in meeting our children’s needs. Emphasis added
[22] In his form 13.1 financial statement amended as of April 9, 2021, he deposed that “last year”, i.e. 2020, his gross income was $54,420. In that same financial statement, he deposed that his current employment income is $3910 per month plus self-employment income in the amount of $625 per month for a total of $4,535 per month or $54,420 per year.
[23] In her affidavit sworn April 7, the Applicant provided more comprehensive evidence and documentation challenging virtually all of the Respondent’s evidence. In his affidavit sworn April 9, the Respondent attempted to respond.
[24] For example, in his reply affidavit sworn April 9, 2021, his evidence was as follows:
In 2019 the City of Toronto deposited $8785.61 for work I had from April to August 2019 in my account and EI deposited $11,649 for January, February, March, September, October, November 2019 when I was out of work. The income that I earned from my store was reported through my accounting of the store. I began to receive the investments I made into the store (loans) from 2011 to 2017, and a small salary in the 2017 tax year through to August 2020.
In 2020 the City of Toronto deposited $29,301.77 for my work from January to March 2020, and from May to November 2020. EI deposited $1851 for the two periods from March to May 2020 and November to December 2020 that I was unemployed. . . .
The difference in my life and income from 2019 to 2020 is significant and has continued to change since separation. In 2019 I was disabled and had been suffering through pain and injury. Medical marijuana has assisted me with pain and anxiety which is why I began growing my own legal plants outside. My store only sells supplies to grow plants and other paraphernalia. . . .
. . . I have not taken or earned any income from the store since it was closed in September 2020.
[25] I accept the Applicant’s submission that the Respondent’s stated income is not reliable for these reasons.
[26] First, in his March 23rd affidavit, the Respondent failed to provide accurate information as to his income from the City and EI. He was forced to provide further detail in his April 9 affidavit. In paragraph 8 of his March 23rd affidavit, he deposed that “if I work a full-year” but that has not been the case. That hypothetical is not realistic because he has historically had part-time employment with the City. In his form 13.1 he deposed that in 2020 his gross-income from all sources was $54,420. That is the same amount as he shows on the same page as his current income which reflects primarily full-time City employment which he did not have in 2020. In paragraph 7 of his March 23rd affidavit he provides income information that is not consistent with paragraph 8 of his April 9th affidavit. I infer from his evidence that he was attempting to demonstrate that he has only one source of income and it is so much less than the Applicant’s income in an effort to demonstrate the “disparity” that is fundamental to his claim for spousal support.
[27] Second, he is far more involved on an on-going basis with his business Green Ivy than he will admit. In his March 23rd affidavit, he said the business has not been operating since September. However, in his form 13.1 he deposed on page 2 that he was employed by the City and by Green Ivy and he disclosed that his current self-employment income before expenses was $625 per month. I do not rely on the hearsay evidence of the Applicant arising from the private investigator’s report. However, the applicant had personally observed the business and activity that demonstrated it was open as recently as March, 2021.
[28] Third, the Respondent has historically had a source of income other than his wages and EI. In her affidavit sworn April 7th, the Applicant deposed that the Green Ivy was the Respondent’s main source of income. In paragraph 22, she referred to the written disclosure request she had made dated July 29, 2020. In his counsel’s letter dated November 5, 2020 the Respondent provided some disclosure. On March 2, 2021, the Applicant served a Request for Information that included missing bank statements. On March 23, 2021 the Respondent provided an affidavit in response to the Request for Information. Attached to that affidavit, the Respondent provided RBC bank statements for account ending 6750. Based on those statements, in paragraph 27 of her affidavit sworn April 7, 2021,the Applicant provided a calculation that demonstrated cash deposits (not related to employment income) in these amounts:
| Period | Reported employment income from City of Toronto | Other unreported cash income | Total net |
|---|---|---|---|
| 2017: January 1, 2017 to January 25, 2017 | $426.07 | $76,990.16 | $77,416.23 |
| 2018 | $23,539.67 | $104,801.40 | $128,341.07 |
| 2019 | $22,688.64 | $86,064.80 | $108,753.44 |
| 2020 | $32,847.77 | $47,260.20 | $80,107.97 |
[29] In his reply affidavit sworn April 9, on this critical evidence demonstrating significant unreported income that dwarfed his employment income, the evidence of the Respondent was as follows:
While I disagree with the way that she calculates my income in the past, often only counting deposits and forgetting that I have expenses, all that changed in the spring of 2020. . .
. . . she knows these deposits all come from legal sources. She used to assist me with accounting, taxes and other business functions. We were trying to pay down our mortgage and save money to build our families [sic] dream home.
[30] The Respondent does not challenge the amounts listed in the table above. His main response is that it all changed because of the pandemic. However, as the Applicant demonstrated, based on the disclosure of bank statements on March 23, 2021, the only change was that he made the last recorded deposit of cash to that bank account on July 29, 2020, which coincided with the date that the Applicant’s counsel asked for disclosure. Furthermore, the Respondent identifies the role that the Applicant played in assisting with accounting and taxes thereby acknowledging that she was well informed as to how the business operated. I infer from the absence of a challenge to the amounts of cash and from the fact that the last deposit was on July 29, 2020 that the Respondent continues to receive undisclosed cash from the business.
[31] Fourth, the Respondent has provided inconsistent evidence as to his income and to the value of his assets. For purposes of this motion, he has acknowledged only approximately $56,000 per year inclusive of wages and EI. In a letter dated March 30, 2021, his lawyer produce a copy of a mortgage commitment dated December 9, 2020 in which he confirmed that he was a full time employee earning $76,762. While the copy produced on March 30th was not signed, it was relied on as the basis upon which the mortgagee had advanced the funds.
[32] He has also provided inconsistent and questionable evidence as to the value of his assets. In the mortgage commitment dated December 9, 2020, he confirmed that the former matrimonial home was valued at $975,000. In paragraph 12 of his affidavit sworn March 23, 2021, he referred to a recent appraisal that indicated a value of $1,090,000. Yet, in his form 13.1 financial statement sworn March 22, 2021, corrected April 9, 2021, he reflected an “estimated” value at valuation date and currently at $500,000. In response to my question as to how the Respondent could provide starkly different values for the mortgagee and for the court, his counsel observed that the value of $500,000 in the form 13.1 was “an oversight”.
[33] In that same form 13.1 the Respondent listed three bank accounts, did not identify account numbers, and estimated the Green Ivy bank balance at valuation date and currently in a round number of $10,000. Based on the analysis of cash in the table above, the Respondent did provide some disclosure in his affidavit dated March 23 in response to the Applicant’s Request for Information, but no verification was provided to the Court for this motion.
[34] Based on that inconsistent and questionable evidence as to his income and the value of his assets, I draw the inference that the Respondent asserts income amounts and values of critical assets to suit the purpose: diminished in response to the Applicant’s claim for an equalization of net family property and in support of his claim for temporary spousal support; increased in support of a request for financing.
C. Needs of the Respondent
[35] The second factor on which the Respondent relies to establish entitlement to spousal support is need.
[36] In his form 13.1 financial statement dated March 22, 2021, corrected April 9, 2021, he showed current income of $54,420 and current expenses totalling $97,638, including a mortgage payment in the amount of $1571 per month. There is no explanation for the difference between income and expenses of approximately $34,000 per year. Saying, as he did in paragraph 11 of his March 23rd affidavit that he relies on the “kindness and generosity” of his family does not suffice. While he did negotiate a mortgage in the amount of $410,000, the stated purpose was to pay the equalization payment to the Applicant, not to support his day-to-day needs. Furthermore, his expenses and debts indicate that he is renovating the home, which he confirms. He includes monthly repairs and maintenance described as “Reno” in the amount of $940 per month and he has acquired debt since separation in the amount of $2500 to a carpenter and $10,000 to an architect. Expenses and debt incurred arising from renovations are irrelevant to establishing entitlement to spousal support.
D. Conclusion on the Respondent’s claim for spousal support
[37] As the decisions in Thiyagarajah v. Paramsothy [2011 ONSC 7368] and Politis v. Politis [2015 ONSC 5997] indicate, the onus is on the Respondent to put forward a prima facie case that he is entitled to temporary spousal support. Where there is need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.
[38] The Respondent’s submission that he is entitled to spousal support is based on the disparity in income between him and the Applicant and his need. It is not necessary for the court to refer to the other factors in s. 15.2(4) and (6). If the evidence of the Respondent was reliable that his income is approximately $54000, that might demonstrate a significant disparity in their incomes. However, the evidence on behalf of the Respondent as to income is not credible and not reliable. Without such credible and reliable evidence, he cannot establish entitlement to spousal support. Furthermore, the limited evidence on his alleged need does not make sense and for that reason, cannot be relied upon.
[39] The motion by the Respondent for an order for spousal support is dismissed because he has failed to put forward a prima facie case that he is entitled to an order that the Applicant pay temporary spousal support.
E. Child Support
[40] In his notice of motion, the Respondent has also asked for child support. In her cross-motion, the Applicant has asked for set-off child support.
[41] In order to consider those motions, I have to make a finding as to income of each parent.
[42] The Applicant is employed as a Pharmaceutical Regulatory Affairs Manager. For the period 2017 to 2019, her annual income was between $100,000 and $120,000. In 2020 she received a bonus of approximately $34,000 for a total 2020 income of $144,434. As part of her regular compensation, she is eligible for an annual bonus target of 15%. She deposed that the bonus for 2020 arose from the employer’s exceptional performance and would not be repeated in the future. Her current annual salary is $112,489. For purposes of her DivorceMate calculations, she deposed that her income is $120,572.
[43] Based on her evidence as to current income, which is not challenged by the Respondent, I find that her income for purposes of making a temporary child support order is $120,572.
[44] In those DivorceMate calculations, the Applicant has detailed three scenarios attributing various amounts of income to the Respondent:
(a) the Respondent’s imputed income is $191,719 and the Applicant’s income is $144,434 leaving an order that the Respondent pay set-off child support in the amount of $566 per month;
(b) The Respondent’s imputed income is $115,571 and the Applicant’s income is $144,434 leaving an order that the Applicant pay set-off child support in the amount of $350 per month;
(c) The Respondent’s imputed income is $164,930 and the Applicant’s income is $120,572 leaving an order that the Respondent pay set-off child support in the amount of $533 per month.
[45] As indicated above in the context of his spousal support claim, it is not possible to identify a credible and reliable income amount for the Respondent. The analysis behind the three scenarios of the Respondent’s income is attractive. However to make a finding as to the Respondent’s income for child support purposes would require an in-depth analysis of the parties’ circumstances to ascertain an amount that should be imputed to him. According to Politis v Politis [2015 ONSC 5997 at para 14] such an in depth analysis is better left to trial.
[46] In this case, each parent is responsible for the children for equal periods of time. Of the three scenarios advanced by the Applicant, one of them is almost equal with the Applicant’s income. In the unique circumstances of this case, I am not persuaded that any order should be made for temporary child support. The motion by the Respondent and the cross-motion by the Applicant for child support are dismissed.
Applicant’s motion for a s. 30 assessment
[47] The older child (C.) was born May 1, 2012 and is now 9 years old. The younger child (M.) was born April 28, 2014 and is now 7 years old.
[48] The evidence on this motion consists of the affidavit of the Applicant sworn April 6, 2021, the affidavit of the Respondent sworn April 9, 2021, the affidavit of the Respondent’s niece Brandii sworn April 9, 2021 and the reply affidavit of the Applicant sworn April 12, 2021.
[49] As a result of the temporary order of Boucher J. dated August 24, 2020, the children are expected to spend equal time in the home of each parent. The Applicant takes the position that that temporary order is not in the best interests of the children and that a s.30 assessment will assist the court in conducting that inquiry.
[50] The Respondent takes the position that an assessment is not necessary and that the best thing that the court can do to assist the children is to order that they immediately return to regular in-class school, hence his motion for an order for in-person schooling. As indicated above, he adjourned his motion for an order that the children immediately attend school in person because TDSB had closed schools. However, he intends to bring on his motion with respect to school starting in September 2021. In paragraph 3 of his affidavit sworn April 9th, the Respondent lists his reasons for opposing the assessment as follows:
(a) I do not believe that such an intrusive exercise is necessary to address the difficulties that we are facing with the separation. What needs to happen is for Ms. Wilson to respect the role that me and my family play in the children’s lives and to encourage it, not find ways to undermine it. There is no clinical reason for such an expensive exercise.
(b) While it is acknowledged that the children are struggling, they were struggling after the first lockdown and before the separation. The real culprit for the children is at-home schooling. We have two rambunctious children who need to be out with their friends in school and exploring the world. They should not be forced to stay home all day and avoid playing with friends and extended family. To order an assessment is a drastic over-reaction to the situation.
(c) The children would be better assisted with counselling than to conduct an assessment. Since the children reside in Toronto, this is where the counselling should occur.
(d) I cannot afford the cost of the assessment, even on a shared or proportionate basis. The Applicant makes much more money than I do, and she clearly has extra money for private investigators and assessments, while I am struggling to make ends meet.
[51] In paragraph 8 of his affidavit, the Respondent asserted that the Applicant continues to attack his family and specifically his niece Brandii. In her affidavit sworn April 9, Brandii has provided a detailed response to evidence of the Applicant and she took issue with the Applicant’s “attack” on the Respondent, on her, and on her family.
A. The role of extended families
[52] In her endorsement dated August 24, 2020 Boucher J. considered the evidence about the involvement of the Applicant’s parents in Aurora and about the involvement of the Respondent’s family. His mother lives in Pickering along with his sister Lorna, Lorna’s daughter Brandii and Brandii’s 13 year old son. Boucher J. observed the following:
The family’s historic extensive involvement of the father’s family was a normal part of their day to day life pre-Covid 19. The mother’s work schedule would have been unmanageable without their assistance, by looking at her transit records of the time of leaving downtown for Scarborough. Abruptly changing the children’s long-term family contact patterns would not be in the children’s long-term interests for developing bonds with those family members, enjoying their love and affection, and benefitting from the cultural and religious experiences that make up the family life enjoyed with the extended family. This is not to say that the mother’s extended family involvement is not also important, but rather that there is no obvious reason to exclude what seems to be important involvement of the father’s family. There is no compelling evidence of neglect or problematic circumstances meriting such a change in the children’s circumstances.
[53] Since the hearing of that motion, the Divorce Act and the Children’s Law Reform Act have been amended. In each statute, in determining the best interests of the children the court must consider “the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life” and “the child’s cultural, linguistic, religious and spiritual upbringing and heritage”. The children’s relationships with members of the parents’ extended families are relevant to parenting decisions.
[54] As Boucher J. indicated, the scheduling order she made was intended to respond to the Respondent’s request to accommodate his work schedule so that he could maximize his parenting time with the children. As the evidence of the Applicant, the Respondent and Brandii indicate, the Respondent is not spending all of his parenting time with the children. The Respondent is renovating the former matrimonial home. The evidence of the Applicant is that the children rarely stay at the former matrimonial home and, at least on one occasion, they slept in the refurbished garage that had no indoor plumbing. Although it is not clear how much of his parenting time the children spend with their father, it is clear from the evidence of the Applicant and of Brandii that for a considerable portion of their time, they stay in the paternal grandmother’s home in Pickering and that Brandii is far more involved with the children, and particularly with the children’s on-line schooling than is the Respondent. The Applicant has provided detailed evidence on the extent to which the Respondent is involved with the children and their schooling. The Respondent and Brandii take that as an attack on the Respondent and on his family.
B. Should an order pursuant to s. 30 of the Children’s Law Reform Act be made?
[55] Section 30 provides as follows:
(1) The court before which an application is brought in respect of custody of or access to a child, by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.
(4) The court shall not appoint a person under subsection (1) unless the person has consented to make the assessment and to report to the court within the period of time specified by the court.
(7) The person appointed under subsection (1) shall file his or her report with the clerk of the court.
[56] The Applicant relies on a decision of mine, namely Glick v. Cale, 2013 ONSC 893. I need not review the non-exhaustive list of criteria relevant to a decision whether to make an order for a s.30 assessment. I point out that, as indicated in that decision, it is not essential that the court identify a clinical issue before making an order for an assessment.
[57] In my view, that order must be made for these reasons.
[58] First, the Applicant, the Respondent and Brandii agree that both children are struggling, and particularly C. The Applicant and Brandii refer to some of the same events to illustrate the challenges the children are having. Where they differ is why they are having challenges. The fact that there is consensus as to the struggles that the children are experiencing but disagreement as to the reasons for those struggles cries out for an independent assessment in order to get to the root of the challenges and make recommendations for responding to the needs of the children.
[59] The Applicant and Brandii are consistent in their description of some of the behaviour of the children, including the comment that M. made to his cousin, referred to in paragraphs 8 and15 of the Applicant’s April 6, 2021 affidavit. The contents of the Applicant’s affidavits sworn April 6 and April 12 and Brandii’s affidavit sworn April 9 are of great concern. The evidence is so revealing and sad, that I will not repeat it in this publicly available decision. The evidence is graphic. The fact that it is Brandii who responds to the detailed evidence of the Applicant demonstrates that she is far more involved in the day to day care of the children than is the Respondent. Who is involved in the care of the children on an ongoing basis is a relevant consideration for the court and ought not to be perceived as an attack by the Applicant.
[60] Second, the conflict between the parents has meant that the needs of the children to therapy and counselling have not been met. Without detailing which parent did what, it appears that the Respondent’s position is that whatever therapeutic or educational intervention is provided must be in Toronto where he lives and not in Aurora where the Applicant lives. The schooling issue was resolved by Boucher J. in her order dated August 24 for the school year 2021. The Respondent takes the position that the challenges the children experience will be resolved by attending in-person school. He adjourned his motion on that issue and he intends to bring it back before the court before school returns in September. At this point, neither parent has authority to register the children for school in September 2021. There is a related issue that the parents have not raised in their material, namely, as vaccines become available for younger children, will these children receive a vaccination, and if so, which one. That issue could become critical if school boards make it conditional on in-person attendance that students be vaccinated. At this point, neither parent has authority to make those decisions. I foresee another intense August where the conflict will be over what school the children will attend, assuming that school will be back to normal for September. The court must have objective input into the needs of the children in order to make an informed decision.
[61] Third, the Respondent has set out the parameters for co-parenting. In paragraph 18 of her affidavit sworn April 6, 2021, on the subject of engaging a parenting professional to assist the Applicant and the Respondent with addressing their differences with a view to improving their co-parenting relationship. The Applicant deposed that after only a few sessions, the Respondent withdrew from the process. His counsel sent a letter dated December 21, 2020 in which the following appears:
As for co-parenting, until your client withdraws her allegation of domestic violence in affidavit format, co-parenting will be impossible. The parties will have to look to a parallel parenting model. Your client will not be able to control how my client chooses to parent the children, just as he does not seek to control how your client parents. The parties can move forward with this model. If not, they will have to continue to litigate and spend money they do not have.
[62] In response to that evidence, in paragraph 16 of his affidavit sworn April 9, 2021, the Respondent repeated that he did not think counselling would be productive while the Applicant was making what he considers to be false allegations about him.
[63] The Applicant has made allegations of domestic abuse. In the endorsement dated August 24, Boucher J. found that there was insufficient evidence to meet the threshold required under s. 46 for a restraining order. The Applicant has not abandoned those allegations. Indeed, as a result of the amendments to the Divorce Act, s. 16(3)(j) and (4) require the Court to consider the issue of family violence. The Respondent’s demand that the Applicant not only abandons the allegations but do so in affidavit form is unreasonable. His refusal to participate in co-parenting is an issue that requires a s. 30 assessment.
[64] The evidence is persuasive that a s. 30 assessment is in the best interests of the children.
C. Assessment conditions
[65] In her affidavit sworn April 6th, the Applicant has proposed three professionals, each of whom has consented as reflected in email communications. The Applicant has provided information as to the retainer each would ask and their availability.
[66] The evidence does not address the second aspect of s. 30(4), namely a commitment to submit a report by a specified date. The Respondent has pointed out that the Applicant has not complied with that requirement.
[67] I agree that it is important that the assessor respond in a specified timeframe. The Applicant has provided availability dates from which I infer that the assessor will start as each indicates. I appreciate that they provided their availability as of the date of the affidavit, namely April 6, but in motions such as this, it is not possible to expect up-to-date availability information. I have selected the assessor based on the information in paragraph 33 of the Applicant’s April 6 affidavit that she will start the assessment within 7 days of receipt of the completed documentation.
[68] For the reasons indicated above, and particularly the school issue in September, there is urgency in this assessment. I expect that counsel will provide a copy of this endorsement and of the order to the assessor. If the assessor is unable to begin immediately, then counsel will, on notice to the Respondent, submit a form 14B motion to my attention attaching the formal consent of an alternative assessor.
[69] I am not expecting the assessor to conduct the assessment and provide her recommendations and write her report by the end of July. I am expecting the assessor will start the process immediately upon receipt of the order. I am expecting that the parents will respond immediately to the intake documents and will be accessible at times suggested by the assessor. It would be helpful to the court in addressing the issue of school in September to have preliminary input on that issue. However, assessors are sometimes reluctant to provide input or recommendations on a preliminary basis. I leave that in the hands of the professional.
[70] The Applicant has asked that the costs be paid equally by the parents. The Respondent is opposed to contributing. To ensure that the assessment is not delayed over payment issues, I am requiring that the Applicant pay the cost of the assessment, subject to apportionment by the trial judge, or the agreement of the parents.
D. Cultural competence of the assessor
[71] In his responding submissions, the Respondent pointed out that, pursuant to s. 16(3)(b) of the Divorce Act, the court is required to consider the cultural, linguistic, religious and spiritual upbringing and heritage of the children and, in this case, the children’s Jamaican heritage and culture. Mr. Macri submitted that there was no evidence on this motion that any of the proposed assessors are “alive” to these issues. He took the position that there needs to be evidence that the assessor understands anti-black racism or minority religion. The Respondent did not raise this issue either in his affidavit sworn April 9 or in the factum.
[72] Clearly s. 16(3)(b) requires the court to consider heritage and culture. A considerable part of the affidavit of the Respondent sworn April 9 addresses such issues which are factors to be considered by the assessor. I am not persuaded that the party asking for the appointment of a s. 30 assessor must provide evidence that the assessor is alive to that factor in s. 16(3) any more than any other factor.
[73] I agree that if anti-black racism were a factor in the case that the court might want to consider whether the proposed assessors might have experience on that issue. In the record before me, there is no evidence or suggestion that anti-black racism is a factor to which the assessor must pay particular attention. In order for the court to have a foundation to consider that submission, the party raising it must provide an evidentiary record and a factum.
Next steps
[74] The Respondent intends to bring back his motion on the issue of schooling in September. It is important that that be approached in an efficient manner taking into account the progress of the assessment and the return to school. As indicated below, I am setting a case conference on August 4 where that issue can be canvassed. It is scheduled before Diamond J. who has previously held two case conferences with the parties. Unless the question of vaccination has been resolved by then, the case conference will include that issue as well.
[75] The parties did not raise the summer schedule but, on the basis of conflict over so many other issues, I am anticipating that an emergency motion will be launched. Pursuant to Family Law Rule 2(2), the primary objective of the rules is to enable the court to deal with cases justly. Pursuant to Rule 2(4), the court shall promote the primary objective by active management of cases, which includes in (g), dealing with an issue in the case on the basis of written documents. As indicated below, I am establishing a process by which the summer schedule can be addressed to ensure it does not give rise to an emergency case conference or an emergency motion.
[76] As of this date, the Government of Ontario has extended the emergency stay-at-home order to June 2, 2021. It is unlikely that these parents will have the opportunity to travel with the children this summer. It is uncertain whether camps will be available. Given the lack of complexity in establishing a summer schedule, I have set out a timetable below, following which I will make the decision on the basis of the proposal that each parent makes.
[77] I also intend to prohibit either party from bringing motions. While the assessment is underway, it is important that the parents focus on that process, not on the adversarial system.
Costs
[78] The Applicant and Respondent have each provided a bill of costs. I require brief written submissions, particularly in relation to offers to settle.
[79] The Applicant has been successful on the two key issues, namely in obtaining an order for a s. 20 assessment and in resisting the Respondent’s motion for temporary spousal support. Neither party has succeeded in obtaining an order for child support. On balance, the Applicant has achieved greater success than has the Respondent. Pursuant to rule 24(1), she is presumptively entitled to costs.
[80] I encourage the parties through counsel to discuss a settlement of the costs. If not, they shall make submissions as set out below.
TEMPORAY ORDER TO GO AS FOLLOWS:
[81] The Respondent’s motion for temporary spousal support is dismissed.
[82] With respect to the motion and cross-motion for temporary child support:
(a) the Respondent’s motion is dismissed;
(b) the Applicant’s cross-motion is dismissed.
[83] The Applicant’s motion for an assessment pursuant to s. 30 of the Children’s Law Reform Act is granted on these conditions:
(a) the assessor is Dr. Linda Bleau;
(b) the Applicant shall pay all of the costs of the assessment, subject to re-apportionment by the trial judge or by agreement;
(c) the parties shall complete and return Dr. Bleau’s intake documents within 5 business days of receipt from her;
(d) the parties shall make themselves available to Dr. Bleau whenever she requests;
(e) counsel for the Applicant shall immediately send to my attention through the Assistant Trial Co-ordinator an unapproved draft order consistent with this paragraph.
[84] If the parties have not agreed by May 21, 2021 as to the costs of these motions, they shall make submissions in writing not exceeding 3 pages plus offers to settle and send to my attention through the Assistant Trial Co-ordinator as follows:
(a) the Applicant by May 26, 2021;
(b) the Respondent by May 28, 2021.
[85] The parties shall immediately make best efforts to agree upon the summer schedule. If they have not agreed by May 21, 2021, I will make the decision based on their written submissions consisting only of her/his proposed timetable/draft order sent to my attention through the Assistant Trial Co-ordinator as follows:
(a) the Applicant by May 26, 2021;
(b) the Respondent by May 28, 2021.
[86] The parties shall attend a case conference on Wednesday August 4, 2021 at 10:00 before Diamond J. for the limited purpose of addressing the question of school for the children starting in September 2021, including related issues such as vaccinations. If those issues are not resolved, Diamond J. may decide whether and when any urgent motion on those issues will be brought.
[87] Until the Assessment report has been filed with the court, neither party may bring any motion without leave of the Court.
[88] This order takes effect immediately.
[89] Counsel may forward an approved draft order with respect to paragraphs 81-82 and 84 to 88 to my attention through the Assistant Trial Co-ordinator for signing.
[90] The parties shall ensure that all documents are filed both in the court file and in CaseLines.
Kiteley J.
Date: May 13, 2021