COURT FILE NO.: FS-18-001901
DATE: 20210104
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sara-Jane White
Applicant
– and –
Wayne Kozun
Respondent
Paul Riley, for the Applicant
Dana Cohen, for the Respondent
HEARD: November 16th, 17th, 18th, 19th, 20th, 23rd, 24th, 25th, 26th, and 27th, 2020
REASONS FOR ORDER
M. Kraft, J.
[1] A ten-day trial took place before me, the primary focus of which was the parties’ two children, IK, currently 18 years of age, and GK, currently 13 years of age.
[2] The applicant, Sara-Jane White (”Sara-Jane”), sought an order for joint custody of the two children and a residential schedule where the children would share their time with the parents, pursuant to an equal-time-sharing schedule, following “a week-about schedule”. The respondent, Wayne Kozun (“Wayne”) sought an order for sole custody of the children, to enable him to have final decision-making authority in relation to all decisions regarding both children, given the high-conflict dynamic between the parties and the fact that ongoing decisions have to be made regularly about the parties’ oldest child. Additionally, Wayne sought a parenting schedule, which allowed for GK to share her time with both parents fairly equally but provided IK with one primary residence, with him, during the school week, and fixed periods of time with Sara-Jane on the weekends and during the mid-week, but for shorter periods of time.
[3] At the time of trial, the parties had been following a parenting schedule arising from a consent order, reached at a case conference held before Stevenson, J., on September 4, 2018, according to which the children resided with Wayne 9 nights out of 14 and with Sara-Jane, 5 nights. By the commencement of the trial, this parenting schedule had been in place for 2 years and 9 months. In terms of decision-making, on October 24, 2019, Paisley, J. made a temporary order granting Wayne sole decision-making authority, in accordance with the recommendations of Howard Hurwitz. Mr. Hurwitz had conducted a custody and access assessment report, pursuant to S.30 of the Children’s Law Reform Act (“CLRA”). However, Wayne was not able to make decisions about the children, despite the Paisley, J. order, because his decisions were not being followed by Sara-Jane.
[4] Prior to the trial, the parties resolved their property division issues, including ownership and possession of the matrimonial home, equalization of net family property and post-separation adjustments to the equalization payment. Under the property division agreement, Sara-Jane received a total of $4,885,000. The only outstanding property issue to be dealt with in the current action, or in a separate action, was that related to the Kozun Family Trust.
[5] During the trial, the parties resolved the issues of retroactive and prospective child and spousal support, which involved determinations of Wayne’s income for support purposes. The issue of costs associated with the issues of child and spousal support are outstanding.
[6] Accordingly, the issues for determination by the Court are as follows:
a. What decision-making regime is appropriate, given the difficulties in the parties’ communication, the high-conflict nature of the parties’ relationship and what has transpired since separation?;
b. What residential schedule is appropriate for each of the children? and
c. Should the Kozun Family Trust be wound up at this time?
Procedural History
[7] This matter has a long and protracted history of high-conflict litigation. There were numerous allegations by both parties against the other, including Sara-Jane alleging that Wayne has an alcohol-use disorder and Wayne alleging that Sara-Jane has mental health issues. In addition to Mr. Hurwitz’s custody and access assessment, a number of other experts had conducted psychiatric assessments of both parties, most of whom testified at trial.
[8] These proceedings began when Sara-Jane commenced an Application on April 17, 2018. Wayne filed his Answer on June 1, 2018.
[9] The parties attended their first case conference on June 22, 2018, in front of Stevenson, J., at which they entered into a consent order, the terms of which follow:
a. An assessor was to be appointed to conduct a custody and access assessment, pursuant to s.30 of the CLRA, to assess and report to the court on the needs of IK and GK and the ability and willingness of the parties or either of them to satisfy the needs of the children;
b. Wayne was to transfer to Sara-Jane the sum of $2,000,000 within 14 days, the amount to be uncharacterized and unallocated as to whether it was a payment on account of support or property; and
c. Wayne was to attend at TD Canada Trust, to close the joint account or to remove his name from the joint account so that Sara-Jane could have sole use of it.
[10] On September 4, 2018, the case conference continued before Stevenson, J., at which the parties reached a further Consent, as follows:
a. Within 30 days each party was to provide financial disclosure to the other;
b. The children were to reside with Sara-Jane 5 nights and with Wayne 9 nights out of 14. This was the same parenting schedule that was in place at the time of trial; and
c. Neither of them would make any changes to the then current caregivers in place for the children without the written consent of the other. The caregivers were to follow the children between homes. The caregivers in place included Gina Montemayer (“Gina”), who works from Monday to Friday, from 7:00 a.m. to 4:00 pm.; Joni (Gina’s daughter) who works from Tuesday to Friday, from 3:30 p.m. to 9:30 p.m.; Rona and/or Takeisha, who work from Monday to Friday, from 3:30 p.m. to 9:00 p.m., and on Saturday, from 9:30 to 5:30 p.m.; and Gladys, who works on Sunday, from 10:00 a.m. to 4:00 p.m.
[11] In November 2018, Sara-Jane brought a Motion for spousal support wherein she sought spousal support of $150,000 per month, or alternately, a lump sum of spousal support of $1,500,000. She then withdrew her support motion before it was heard. The parties entered into an agreement whereby Wayne purchased Sara-Jane’s one-half interest in the matrimonial home, for the sum of $1,200,000. The Agreement specified that Sara-Jane could not bring a Motion for spousal support for a period of six months. The matrimonial home transfer and payment occurred in early December 2018.
[12] On December 14, 2018, Sara-Jane brought a motion, seeking a finding that Wayne was in breach of the September 4, 2018 disclosure order, and an order striking Wayne’s pleadings. Monahan, J. dismissed Sara-Jane’s motion, finding that Wayne had provided substantially all of the disclosure required under to the Order. Sara-Jane was ordered to pay Wayne’s costs of the disclosure motion in the sum of $3,200, within 30 days. Sara-Jane did not pay these costs; however, this issue was resolved when the parties settled their property division issues on November 6, 2020.
[13] On March 4, 2019, the parties attended a Settlement Conference before Stevenson, J., during which they agreed to exchange parenting proposals and further lists of financial disclosure. The Settlement Conference was adjourned to May 13, 2019.
[14] On May 13, 2019, the Settlement Conference continued before Horkins, J. The parties agreed to exchange net family property comparison charts; serve offers to settle and obtain the final s.30 custody and access assessment report from Howard Hurwitz before they further continued the conference on July 3, 2019.
[15] On July 3, 2019, the Settlement Conference continued before Horkins, J., at which time the parties reached an Interim Consent, which provided as follows:
a. Sara-Jane was to obtain a psychiatric assessment, the report was to be completed by October 9, 2019;
b. Wayne was to obtain an Alcohol Assessment, the report was to be completed by October 9, 2019;
c. Wayne was to pay Sara-Jane an uncharacterized advance of $500,000; and
d. A Trial Management Conference (“TMC”) was to take place on October 18, 2019.
[16] On October 18, 2019, Horkins, J. conducted the TMC. She fixed an April 6, 2020, trial date. The trial would take about three weeks.
[17] On October 24, 2019, Paisley, J. made a temporary order, granting Wayne decision-making authority respecting the children, in accordance with the recommendations of Howard Hurwitz.
[18] On November 12, 2019, Faieta, J. adjourned Sara-Jane’s motion to change IK’s school since there had been a breakdown in the solicitor-client relationship between Sara and her lawyer. This motion was never heard.
[19] On March 4, 2020, a further TMC was held, before Akbarali J. Sara-Jane had just retained her current counsel. An “exit” TMC was scheduled for April 1, 2020, to canvass possible resolution.
[20] The trial could not proceed on April 6, 2020 as a result of the Covid-19 health crisis.
[21] On November 2, 2020, Diamond J. conducted an “exit” TMC. The trial was scheduled for November 16, 2020.
[22] I presided over the ten-day trial, which began November 16, 2020. The trial was conducted via videoconference. All involved participated using the Zoom platform. I reserved my decision. Below is my decision and the reasons for it.
The Evidence
[23] In addition to the parties’ testimony, the following eight witnesses testified at trial:
a. Howard Hurwitz, the social worker who conducted a custody and access assessment pursuant to s.30 of the CLRA, testified as a litigation expert;
b. Dr. Joel Hundert, a psychologist who owns the Behaviour Innovations Agency and the Children’s Centre school for children with autism, testified as a participant expert;
c. Dr. Mark Pearce, a general forensic psychiatrist who conducted a mental health assessment of Sara-Jane, testified as a litigation expert;
d. Dr. Robert McMaster, a forensic psychiatrist who conducted a mental health and addiction assessment of Wayne regarding his alcohol use, testified as a litigation expert;
e. Dr. Joel Steinman, a psychiatrist retained by Howard Hurwitz, to conduct an addiction / alcohol assessment of both parties, testified as a litigation expert;
f. Gayle McIntosh, the prior Vice-Principal at West Hill Collegiate, the school at which IK had attended for the past 4 ½ academic years, testified as a participant expert;
g. Jenny Brown, IK’s current classroom teacher and her teacher for the last three years, testified as a participant expert; and
h. Marli White, Sara-Jane’s sister, testified.
Background Facts
[24] Sara-Jane and Wayne met at the end of 1989, when they were both at the University of Western Ontario. They began dating at the beginning of 1990 and were married on July 2, 1994.
[25] The parties moved to Toronto in 1993, after Wayne had graduated from Western with his Masters in Business Administration. In Toronto, Sara-Jane worked as an insurance adjuster for Canada Life and Wayne began working at the Ontario Teacher’s Pension Plan (“OTPP”) in 1995.
[26] IK was born on March 13, 2002 and GK was born on October 25, 2008.
[27] The parties separated on October 31, 2017, after 23 years of marriage.
[28] When IK was about 2 years of age, she was diagnosed with Rett Query, which is a condition on the Autism Spectrum. IK’s diagnosis was based on the fact that she presents with the symptoms of Rett Syndrome, a genetic condition which impairs normal development in all domains, but the genetic testing did not reveal she had the genetic markers or mutation for the condition. More recently, IK underwent advanced genetic testing at the Hospital for Sick Children and she has been diagnosed with an NUS1 related disorder. According to the Genetic Test Report, dated October 13, 2020, there are three other known individuals who presented with global developmental delay and as of 2017, have experienced similar symptoms as IK with a genetic NUS1 related disorder. Further testing will be needed.
[29] IK is developmentally delayed. She has below-average IQ; low muscle tone, shaking, ataxia, scoliosis, and bone pathology. IK also displays autistic behavioural symptoms, such as regular outbursts, dealing well with transitions, and requiring support and planning when entering into a new environment. IK attends a special school program; participates in ongoing therapy; and requires a special treatment plan. She has difficulty talking and walking, and requires assistance with basic skills, including dressing, going to the bathroom and grooming. The evidence confirms that IK has tremendous difficulty with change and requires stability and predictability. IK suffers from anxiety, seizures and OCD. IK will require surgery for scoliosis within the next year or two.
[30] GK does not have any health-related concerns. However, she struggles with the impact of the family breakdown and with having a sister with special needs. GK has been identified by Howard Hurwitz as needing counselling. Wayne is anxious to start the counselling but Sara-Jane has resisted counselling for GK.
Relevant Evidence
[31] After the separation in October 2017, the parties resided together in the matrimonial home, with significant conflict. On May 2, 2018, Sara-Jane was charged with assaulting Wayne, after an incident in the home took place. Sara-Jane’s bail conditions prohibited her from residing in the matrimonial home; attending at the matrimonial home; and from communicating directly or indirectly with Wayne. In late 2018, the bail conditions were replaced by a peace bond. The peace bond had expired by the time of trial.
[32] For four months, between May 2018 and September 2018, Sara-Jane decided to reside with the parties’ nanny, Gina and Gina’s daughter, Joni, in their apartment. Joni worked with the family in the evenings during the week. During these four months, Wayne looked after all of the children’s needs. The children saw Sara-Jane during this time period but did not have any overnight time with her because of where she was residing. In September 2018, Sara-Jane purchased a mortgage-free home in the same neighbourhood as the matrimonial home.
[33] As described above, Sara-Jane worked in the insurance industry. However, she ultimately obtained a four-year degree, obtaining a Diploma in Naturopathic Medicine from the Canadian College of Naturopathic Medicine in 2003. She worked for a short time in private practice. In the past few years, Sara-Jane had not declared and/or earned any significant income in private practice or otherwise. During the marriage, Sara-Jane did not work much outside of the home. Throughout the marriage, Wayne worked full-time.
[34] The parties hired IK’s nanny, Gina, in February 2003, before IK turned 1 years old. Sara-Jane was still in naturopathic school when IK was born. Gina was hired, to enable Sara-Jane to finish her degree.
[35] IK’s diagnosis was devastating for both parties. Sara-Jane turned her efforts to becoming an expert in Rett Syndrome, which Wayne described in his testimony as “inspiring”. The parties learned about research being done at the Hospital for Sick Children (“Sick Kids”) and decided to donate funds toward that research. In 2005 or 2006, Sara-Jane began to work with a researcher in a lab at Sick Kids, to assist with research that was being conducted about Rett Syndrome, with the funds the parties had donated.
[36] When IK was 3 ½ years old, she began attending Behaviour Innovations, a private agency, which provides ABA (Applied Behaviour Analysis) services to children with developmental disorders and attending their specialized private school, known as the Children’s College. ABA, also known as Intensive Behavioural Intervention (“IBI”), is the most recommended therapy for children with autism. The Children’s College school, which cost almost $10,000 per month, is in Etobicoke. Initially, IK was treated by Dr. Allen at the Behaviour Innovations and subsequently, IK began to be treated by Dr. Allen’s husband, Dr. Hundert. Dr. Hundert continued to assist the family with IK, even after she left his school, by managing her transition to public school and by providing assessments of IK’s behaviour and recommendations for behaviour management protocols in 2015 and, more recently, in 2019.
[37] In September 2011, when IK was in grade 5, the parties made the decision that IK would change to a specialized programme within the public-school system, where she could learn socialization skills in a classroom setting with other children. Accordingly, IK began attending Scarborough Village, a TDSB school in Scarborough, when she was in Grade 5. IK had challenges in school, but she adjusted and did well there. Dr. Hundert and Behaviour Innovations assisted IK in the transition to public school.
[38] In the years prior to their separation, Sara-Jane was home and Wayne was working outside of the home, sometimes for long hours during the week. The parties were both involved in major decisions for the children and in managing IK’s complicated medical needs. Given IK’s complex medical needs, many decisions have to be made about IK in terms of her education, therapies, and health-related needs.
[39] Due to IK’s high level of needs, the parties have always employed full-time caregivers, to assist with the children. Two full-time caregivers have assisted them with IK and GK. Gina works for the family as IK’s nanny. Gina’s daughter, Joni, assists the family in the evenings. Fe works for the family full-time as GK’s nanny. The parties also employ additional caregivers at nights and on the weekends.
[40] IK is particularly attached to her nanny, Gina, who has worked with the family since IK’s birth. Gina drives. She has been, and continues to be, solely responsible for taking IK to and from school, all of her activities and therapies. The parents agree that Gina is an important caregiver figure and a stabilizing factor for IK.
[41] IK currently attends West Hill Collegiate (“West Hill”) where she has attended High School. She is in a special needs classroom. IK is currently in her 5th year at West Hill. Given her special needs, IK is eligible to remain in the TDSB program until she turns 21 years of age. Sara-Jane does not think West Hill is the right school for IK. She proposes that IK attend a private ABA school, as she had done in her early years. Sara-Jane did not present a plan as to which school IK ought to attend. Rather, she simply proposes that IK be placed in a private ABA school, to be chosen by Dr. Hundert. Wayne proposes that IK continue to attend West Hill until she turns 21 years of age, while also accessing therapies for speech therapy and other ABA therapies recommended by Dr. Hundert. Wayne’s plan of care considers community-transition programs for IK as a disabled young adult.
The Years Leading up to the Separation
[42] As seen above and particularly during the last five years of the marriage, and despite the fact that the children were in school full-time and Sara-Jane was at home, the parties had two nannies/caregivers every day, as well as additional caregivers during the evenings and on weekends. During the week, when Wayne was at work, almost all of the childcare was done by the nannies.
[43] Sara-Jane left the home very early every morning, always before the children woke up, and remained out of the home until both children, assisted by the nannies, ate their breakfast, got ready for school, and were dropped off at school. The nannies picked the children up at the end of the day and stayed in the home until Wayne arrived home from work or later into the evening.
[44] During the marriage, Gina, rather than Sara-Jane, accompanied IK to all medical and therapy appointments.
[45] In later years, Wayne worked as a senior vice president in public equities at the OTPP. His income, including bonuses and incentives, was approximately $2,500,000 per year. In 2016, the year before the separation, he was let go from OTPP and received a significant severance package over the period from 2016-2018, totaling approximately $7.8 million gross. He then commenced working on contract for a third party earning $20,000 per month. This contract ended in February 2018.
[46] Wayne, with arms length partners, have now started a business in his field of expertise, a company called Forthlane Investments. In mid-2019, Wayne began receiving a salary from the company of $350,000 per year. Until May 2020, he also earned approximately $32,000 per year from a board position with a British investment company.
[47] All of the severance payments Wayne received from OTPP had already been paid or already crystallized by the date of separation. As a result, Sara-Jane effectively received one-half of Wayne’s net severance payment from OTPP by way of the equalization payment she received.
[48] From separation in October, 2017 until the parties physically separated in May 2018, and continuing to July 2018, Wayne paid for 100% of the house expenses, Sara-Jane’s bills (i.e., car, cell phone, clothing, etc.), the line of credit and credit card debts, Sara-Jane’s legal fees, 100% of the children’s expenses, and, in addition, he deposited into Sara-Jane’s account the sum of $2,000 net per month for her own use. Throughout the marriage and post-separation, Wayne always paid for the cost of these caregivers, which costs total in excess of $100,000 per annum.
[49] Sara-Jane testified that, since the separation, she has continued to leave the home every morning before the children are awake and the nannies have continued to assist IK and GK with their morning routines. Sara-Jane’s evidence is that she exercises every morning at one of two gyms where she is a private member.
[50] In the school year, which commenced in September 2019, IK was having very significant difficulties adjusting to being back at school. In particular, IK experienced tremendous anxiety and distress at school and was engaging in self-harming behaviours. Despite the school trying to communicate with both parents, Sara-Jane deferred to Gina to address West Hill’s concerns about IK. When West Hill arranged an emergency meeting with both parents to discuss the difficulties IK was experiencing and to collaborate on how best to assist IK, Sara-Jane refused to participate in any of the school planning meetings with various school professionals to address strategies for IK. Instead, Sara-Jane advised Wayne and the school that she would not attend without her education lawyer present. As a result, Wayne attended all meetings alone. Sara-Jane then advised Wayne and the school that IK would be changing schools, back to Behaviour Innovations, where she had not attended since 2011. This information was not accurate.
[51] Following separation, Sara-Jane retained an education lawyer, to take legal action against IK’s teacher, school and the Toronto District School Board. Wayne learned of this when he received a draft letter for his approval from an education lawyer, which letter stated that the lawyer had been “retained by Sara-Jane White and her family” (meaning Wayne). Sara-Jane hiring this education lawyer was a point of contention between the parties.
[52] In written communications with Wayne, Sara-Jane made repeated allegations with respect to West Hill, alleging that the TDSB was forcibly medicating her, that her teachers had physically assaulted her (Sara-Jane had alleged this, at two different schools. On one occasion, she had reported this to the police). Wayne does not share Sara-Jane’s concerns in this regard.
[53] Gayle McIntosh and Jenny Brown who work at West Hill testified that they find Sara-Jane to be aggressive and combative. Gayle McIntosh, the prior Vice-Principal at West Hill, testified that the school much prefers to deal with Wayne on any issues arising with IK because he is responsive and attends to IK’s needs and interests. By contrast, Gayle McIntosh and IK’s current teacher, Jenny Brown, both testified that Sara-Jane is abusive in the manner in which she communicates with the school and clearly is unhappy with IK being at West Hill.
[54] For the entirety of this school year, from September 2020 until the time of the trial, Sara Jane did not facilitate IK’s attendance at school on a single day that IK was in her care (two weekdays in week one, one weekday in week two). Even when Wayne proposed that Sara-Jane drop IK off at his house in the morning after her overnight time with her, so that he could take IK to school, Sara-Jane refused. Accordingly, IK missed 1-2 days of school every week for the two months leading up to the trial. Given IK’s diagnosis, consistency and predictability in her schedule is critical.
[55] According to Wayne, in the year prior to separation and since then, Sara-Jane has acted erratically and dangerously, assaulting him on numerous occasions, two of which were in the home with the children present and significant enough for him to be fearful and call 911. Sara-Jane was charged twice with assault, once in 2018 and another time in 2016 (when she was also charged with assault on the arresting officer). As mentioned above, the 2018 charges were resolved by way of a one-year peace bond; the 2016 charges were stayed.
[56] In February 2019, Howard Hurwitz completed the custody and access assessment. He recommended that Wayne have sole custody of the children, with final decision-making authority over the major issues pertaining to their health, education, recreation and religion. He recommended an equal time-sharing schedule where the children would spend alternating weeks with each parent.
[57] In summary, Howard Hurwitz found that:
a. During the assessment process, Sara-Jane presented as unfocussed and angry. She repeatedly sent Mr. Hurwitz emails, which had no explanations and no apparent relevance to any parenting issue. (For example, she sent an email, which she stated that she had found an unused condom in Wayne’s drawer, in his home. She also presented Mr. Hurwitz with a photo of IK in Gina’s vehicle even though it was known that Gina drives IK everywhere);
b. In the joint meeting with Mr. Hurwitz, Sara-Jane and Wayne, Sara-Jane focused on being critical of Wayne and was unable to re-direct herself to the parenting issues. She alleged that she was fearful and intimidated by Wayne, but nothing in her behaviour in the meeting or the assessment process was suggestive of that; instead, it was she who was confrontational and Wayne’s behavior toward her was calm and respectful;
c. During the two home visits in her home, Sara-Jane was unable to engage with the children. Both children were independently watching television. Even when asked by Mr. Hurwitz that she engage with the children, Sara-Jane did not “pick up on” the suggestion. Two nannies were present during the home visit; they attended to all of the children’s needs;
d. Mr. Hurwitz had significant concerns about the Psychological Report prepared by Dr. Daniel Fitzgerald of Sara-Jane and her mental health. Accordingly, he recommended that she complete a Psychiatric Assessment; and
e. Mr. Hurwitz recommended that Wayne have sole custody of the children due to significant concerns about Sara-Jane’s ability to communicate with the professionals involved with the children and with Wayne, to get along with the children’s care providers, and to make decisions in the children’s interests.
[58] As part of Howard Hurwitz’s custody and access assessment, he had retained Dr. Daniel Fitzgerald, to conduct personality testing of both parties. Additionally, Mr. Hurwitz retained Dr. Ray Steinman, an addictions doctor, to conduct an addiction and alcohol assessment of both parties. Both assessment reports form part of Mr. Hurwitz’s assessment report.
[59] Pursuant to a September 2018 Consent Order, neither parent was to change or fire the existing caregivers for the children. Contrary to the Order and the recommendations of Howard Hurwitz, in January 2020, Sara-Jane threatened to and then fired Isabella’s nanny, Gina, by communicating to Wayne that Gina was no longer permitted into her home. Fe (GK’s nanny) continues to work in both homes. Although Gina worked for periods of time in Sara-Jane’s home from January to March 2020, she has not worked at all in Sara-Jane’s home since an incident on March 13, 2020. Gina, however, continues to pick up IK from Sara-Jane’s home.
[60] For nine months prior to the trial, Sara-Jane had refused to use the previously agreed-upon communication web platform, “OurFamilyWizard.com” (“OFW”), to communicate with Wayne. Sara-Jane testified that she stopped using OFW when her annual subscription expired in or about March 2020, because she did not want to spend the money on the subscription, which is about $150 a year. Even when Wayne texts Sara-Jane on her cellular phone, to advise her to log on to OFW for important information pertaining to the children, such as information about appointments, Sara-Jane refuses to log on, insisting that OFW is only to be used to communicate about her support payments.
[61] Sara-Jane refuses to communicate with Wayne in a productive manner. Specifically, despite Wayne’s attempts to communicate with Sara-Jane about pertinent information about both children, Sara-Jane refuses to communicate with him about issues such as summer plans, including summer vacations and camps for which she has signed the children up. She refuses to communicate with Wayne about extracurricular activities, even when such activities fall on his time with the children. She advises the children of activities which she has scheduled on Wayne’s time. She attempts to arrange additional time with her with GK directly, which are contrary to the court-ordered schedule, placing GK (who is, again, 12 years old) in a loyalty bind between her parents. Sara-Jane has refused to respond to Wayne when he has attempted to organize summer plans and camps for the children, causing chaos in the past three summers. Wayne cannot communicate with Sara-Jane because she is unwilling to speak to him and unable to focus her written responses on the issue being addressed by Wayne. For example, when Wayne has asked Sara-Jane direct questions about whether IK has taken her prescription medication, Sara-Jane refuses to respond.
[62] Despite the fact that Howard Hurwitz recommended counselling for GK, Sara-Jane has refused to facilitate or even consent to any sort of counselling for her. As a result, GK has gone without therapeutic assistance since the February 2019 recommendation was made.
[63] In the past year, Sara-Jane has not participated in any medical or school appointments for IK, despite having advance written notice of every appointment scheduled. In particular, Sara-Jane has missed appointments for IK with the family doctor, the neurologist, the orthopedic surgeon and the various therapy providers. Sara-Jane admitted that she has failed to attend these important appointments for IK but offered no explanation as to why during her testimony.
[64] Recently, when Sick Kids conducted full genome testing of IK, Sara-Jane refused to participate in such testing. Despite advance notice, Sara-Jane failed to participate in the call from the Genetic Clinic, to ascertain the results of the testing. Even when Wayne texted her, to advise her to check OFW, where he had posted the results of the testing (in which a genetic syndrome, not previously identified was found in IK), Sara-Jane had refused to log on to OFW. During the trial, Sara-Jane admitted that she first read the results of the genetic testing after the trial began.
[65] Both during marriage and post-separation, Wayne had observed a number of concerning behaviours of Sara-Jane, causing him to question her mental health. Wayne observed Sara-Jane’s “paranoid tendencies”, such as believing that she was being monitored and videotaped by Rogers Cable in her own home and by Telehealth Ontario while at medical appointments.
[66] According to Wayne, Sara-Jane is unreasonable and refuses to co-parent with him. According to Wayne, one example occurred in January 2020, when Sara-Jane went to Blue Mountain for the weekend with GK, leaving IK at home with babysitter. When Wayne advised Sara-Jane that he would be taking IK back to his house for the weekend, and after he had advised the babysitter and had taken IK to his home, Sara-Jane became enraged and called 911. The police then attended Wayne’s home and interviewed both Wayne and IK. Wayne was informed that Sara-Jane had reported that he had kidnapped IK. In cross-examination, Sara-Jane admitted that when she called the police, she knew that meant that the police would have to interview IK. However, during her testimony, Sara-Jane was unable to appreciate how her conduct negatively impacted IK. When asked whether she would agree that causing IK to be interviewed by the police would not be in IK’s best interests, Sara-Jane responded that it was “ok” for IK to be subjected to a police interview because it was not the first time that IK had been interviewed by the police.
[67] In late September 2020, Sara-Jane overheld IK for a week. Sara-Jane returned IK to Wayne’s home only after he threatened to bring an urgent motion for IK’s return. During the ten-day period that IK was in Sara-Jane’s care unilaterally and without Wayne’s consent, Sara-Jane did not facilitate IK’s attendance at school. During this same period, Sara-Jane informed Wayne that IK would be home-schooled and that she would be taking IK to Sylvan Learning Centre for tutoring. When Wayne advised that he was not consenting to this, he discovered that Sara-Jane continued to have IK participate in the Sylvan Learning Centre home schooling plan. Wayne had temporary sole custody of the children under the Order of Paisley, J., dated October 24, 2019. Sara-Jane had completely ignored it.
[68] Dr. Fitzgerald, referred to above in these Reasons, found that neither Sara-Jane nor Wayne suffered from any mental health disorder. He did recommend that Sara-Jane have counselling, given Sara-Jane’s personality traits and communication style. Again, as a result of the concerns raised by Dr Fitzgerald, Howard Hurwitz recommended that Sara-Jane undertake a psychiatric assessment.
[69] Dr. Steinman, the addictions doctor retained by Mr. Hurwitz, did not find that Sara-Jane had an alcohol use disorder. He did, however, find that Wayne had a Binge Alcohol Disorder. Dr. Steinman recommended that Wayne be re-tested and engage in alcohol-addiction counselling. Wayne did not agree with Dr. Steinman’s assessment. Accordingly, he had another doctor re-test him, in terms of the blood and urine work completed by Dr. Steinman. When the second set of testing came back negative, Wayne then engaged a forensic psychiatrist, to complete a full addictions assessment report. Dr. Robert McMaster completed an addictions assessment of Wayne and found that he did not have an alcohol-use disorder.
[70] Once Dr. Steinman’s report indicated that Wayne had a Binge Alcohol Disorder, Sara-Jane began to allege that Wayne had an alcohol use disorder. Although Sara-Jane had not raised any concerns about Wayne’s alcohol use in her pleadings or in any of the affidavits she had filed on the various parenting motions that had been brought, Sara-Jane fixated on Dr. Steinman’s report and raised Wayne’s alleged “Binge Alcohol Disorder” in the majority of emails and texts she sent to Wayne.
[71] Sara-Jane retained Dr. Mark Pearce, a psychiatrist, to conduct a psychiatric assessment of her. Dr. Pearce found that Sara-Jane did not suffer from a major mental illness or a substance use disorder. While he did not believe that Sara-Jane required medication, Dr. Pearce did recommend that Sara-Jane engage in treatment with a social worker or psychologist regularly, since communication skills for her were problematic.
[72] Wayne proposes a parenting plan under which he makes final decisions for both children, after a consultation process whereby he first informs Sara-Jane of any potential decisions and gives her the opportunity for input. In terms of the residential schedule, Wayne proposes that the children’s primary residence be with him, with a fixed residency schedule under which Sara-Jane has the children in her care. His main concern is that IK spend her weekday nights in his home so she has consistency and stability during the school week and can easily understand the academic expectations on her.
Howard Hurwitz – Custody and Access Assessor
[73] As stated above, Howard Hurwitz completed a s.30 custody and access assessment for the Court. The assessment commenced in July 2018 and was completed six months later, on February 6, 2019.
[74] During the course of the assessment, Mr. Hurwitz met with each party four times; conducted a joint parent meeting on November 13, 2018; met with GK on 2 occasions; did not meet with IK, as he deemed her to be “not interviewable”; completed two observation visits in each parent’s home; attended and observed IK in her classroom at West Hill; spoke with a friend of Sara-Jane; Sara-Jane’s brother, Gareth White; Sara-Jane’s sister, Marli White; and the family’s two full-time nannies (Gina and Fe). In addition, Mr. Hurwitz spoke with Gail McIntosh, the prior vice-principal at West Hill; Dr. Hundert, the psychologist who has been involved with IK for many years; Jenny Brown, IK’s teacher; a CAS worker; a tutor; Dr. Rockman, the parties’ family doctor, and Dr. Daniel Fitzgerald, the psychologist he retained to conduct personality testing of both parties as well as a mental health assessment of both parties.
[75] The summary of Mr. Hurwitz’s recommendations in terms of parenting for IK and GK were as follows:
a. Wayne should have sole custody;
b. Both parents should consult with one another with respect to parenting decisions related to the children’s education, health, religion and recreation. Wayne should have final decision-making authority;
c. Wayne should enroll in an alcohol treatment program within 30 days of the February 6, 2019, disclosure meeting, the program to be approved of by Dr. Steinman;
d. Sara-Jane should have a psychiatric assessment, to determine if there are additional mental health conditions impacting her behaviour, to be conducted by Dr. Peter Sutton or another psychiatrist approved by Mr. Hurwitz;
e. GK should participate in counselling by a therapist experienced in working with children and families going through separation/divorce with suggested therapists being Stella Kavoukian, Linda Popielarczyk or Laurie Stein;
f. Both parents should participate with Children’s College/Behavioural Innovations Centre around behavioural management issues for IK and GK;
g. The children should reside with both parents, pursuant to an equal time-sharing schedule, on a week on/week off schedule, with the changeover day to be Friday after school, at 3:30 p.m. GK is to have a three-hour dinner with the non-resident parent on Tuesday evenings; and
h. The children should share their holiday time with each parent, pursuant to the detailed parenting plan attached to Mr. Hurwitz’s assessment, which is generally an equal sharing of the holiday time.
[76] In reaching his parenting plan recommendations, Howard Hurwitz made a number of observations of and findings of fact about Sara-Jane, as follows:
a. Sara-Jane has unrealistic expectations of IK, which is supported by various collaterals, including the school professionals at IK’s school; Dr. Hundert; Howard Hurwitz; and both of Sara-Jane’s siblings;
b. Sara-Jane’s view that IK can perform tasks at a grade 10 level is not supported by the professionals and does not accord with her developmental level;
c. There are significant concerns about how Sara-Jane infantilizes the children because she does not want them to both be upset or cry. This has led to problematic behaviours in the home with both children, and particularly IK;
d. Her behaviour management of both children is a major concern, which inhibits both children from fully developing their potential;
e. The many caregivers involved with the children take on more of the direct parenting tasks than do either of the parents;
f. There is a significant history of unexplained, aggressive behaviours by Sara-Jane. Her sister and Wayne have noted a deterioration in her behaviour. Her altercations with police officers on several occasions has been concerning. During the assessment, Howard Hurwitz saw evidence of some worrisome behaviours such as the many emails she sent to him that had little direct relevance to matters and her behaviour at the joint meeting;
g. The collaterals Sara-Jane presented to Mr. Hurwitz did not know Sara-Jane on a personal level, indicating to him that she has very few close personal relationships and limited social supports;
h. Sara-Jane has major difficulties getting along with professionals and staff at both children’s schools. Howard Hurwitz saw her inability to get along with professionals as a significant issue since both children have been deemed to require additional supports, to assist them with their behaviour and mental health;
i. Sara-Jane was focused on criticisms of Wayne throughout the assessment, which centred on him as a person and as a father. She never said anything positive about Wayne. It was clear that Sara-Jane had no desire or capacity to co-parent with him. She also does not value the role Wayne plays in the children’s lives. Instead, her plan of care showed a desire to see a reduction of Wayne’s parenting time; and
j. Overall, Mr. Hurwitz had concerns about Sara-Jane’s functioning, based on Dr. Fitzgerald’s report. He said that the information raises significant doubt about her decision-making capabilities, which is a significant element of the children’s parenting needs.
[77] Howard Hurwitz made a number of findings of observations of and fact about Wayne, as follows:
a. Wayne demonstrates empathy, kindness and sensitivity toward both children;
b. Wayne was very cooperative during the assessment;
c. Wayne was concerned about and empathetic toward Sara-Jane’s behaviour. He did not present as being angry, spiteful or malicious in his interactions with her, or in comments made to Mr. Hurwitz. He was able to talk about positive things about Sara-Jane and their marriage;
d. His interactions with professionals were positive, constructive and child-focused. He had been helpful to the school around communication and problem-solving issues regarding IK. The schools have refused to deal with Sara-Jane since they are fearful of her;
e. At the joint meeting, Wayne genuinely tried to solve parenting issues with Sara-Jane but could not. He was able to communicate with her in a respectful manner, yet was frustrated by their inability to problem-solve issues together;
f. Wayne has also relied on the nannies to parent the children over the years, which Mr. Hurwitz saw during the observation visits, but to a lesser extent than Sara-Jane has;
g. Dr. Fitzgerald identified no concerns regarding Wayne’s mental health in his psychological assessment; and
h. The substance abuse testing done by Dr. Steinman revealed that Wayne has Binge Alcohol Disorder, although Mr. Hurwitz had not seen evidence of Wayne behaving under the influence of alcohol during the assessment. Despite this, Mr. Hurwitz did give some weight to Dr. Steinman’s views and recommendations. Mr. Hurwitz noted that Wayne was in denial about the extent of his consumption of alcohol and whether he had a problem with Dr. Steinman’s report. Mr. Hurwitz noted that Wayne did not believe that Dr. Steinman’s assessment report was accurate, and consequently, Wayne was having further testing completed.
[78] Overall, Mr. Hurwitz found that both parents are devoted to the well-being of their children. However, they had found themselves involved in a high-conflict separation. Mr. Hurwitz attributes the high conflict as being “largely instigated” by Sara-Jane and believes that Wayne has “been reactive to her aggressive behaviours”. While Mr. Hurwitz expressed concerns about Sara-Jane’s decision-making ability and confirmed that “there is a lot of evidence to support that Ms. White is unable to make effective child centered decisions for both children”, he did not believe that these concerns should interfere with the amount of time the children spend with her, since both IK and GK are attached to her.
[79] In cross-examination, counsel for Wayne put a number of hypothetical circumstances to Mr. Hurwitz. All of the hypotheticals were real-life circumstances, which had occurred in this family post-Mr. Hurwitz’s s.30 assessment. In answer to these hypotheticals, Mr. Hurwitz made the following admissions:
a. He recommended sole custody to Wayne because, in this family, both children have additional needs, which require planning from a parenting perspective, and, he believed, it had to be clear which parent is the decision-maker. He felt that Wayne had a greater capacity and ability to make child-focused decisions than with Sara-Jane;
b. He rejected the option of joint custody in this case because he felt that joint custody would promote increased conflict and a level of engagement between the parents, which would not work for this family. He based this opinion on the parents’ limited ability to problem-solve and work together;
c. He found it very concerning that Sara-Jane had not consented to GK obtaining counselling as of the date of the trial and that Sara-Jane took the position that GK can only get counselling, if IK gets counselling;
d. He found it very concerning that the parties had engaged Dr. Hundert, as per his custody assessment recommendations, and that Dr. Hundert had made recommendations for a behaviour management protocol, to be piloted in both parents’ homes, but that Sara-Jane had refused to consent to and/or followed, especially since Dr. Hundert had been Sara-Jane’s choice of psychologist for IK;
e. He found it extremely concerning that Sara-Jane sent texts to Wayne on GK’s iPod Touch about Wayne’s girlfriend, which were inappropriate and which could be accessed by GK;
f. He found it very concerning that Sara-Jane regularly and repeatedly scheduled extra-curricular activities for GK during Wayne’s scheduled parenting time with GK, without first notifying Wayne;
g. He found it very concerning that Sara-Jane had scheduled a vacation for herself and GK, without advising Wayne first;
h. He found it very concerning that, since March 2020, Sara-Jane had refused to look at or post messages on OFW, and, instead, had insisted that the parties communicate by text only on cellphones. In particular, Mr. Hurwitz testified that texting between parents enables a high level of engagement, which is not ideal; there ought to be a record of communication between the parents, which is not always possible with texts; and texting can be abused and accessed by children;
i. He found it extremely important that IK attend school consistently. He found it extremely concerning that Sara-Jane had refused to facilitate IK’s attendance at school when she has resided with her, such that IK misses school every Wednesday and every other Thursday because Sara-Jane does not want IK to attend West Hill;
j. He found it concerning that Sara-Jane had not participated in a single one of IK’s doctors’ appointments in the last year, despite having notice of them, including appointments with the neurologist; orthopedic surgeon and family doctor; and
k. He found it concerning that Sara-Jane would not consent to IK to participating in the therapy that Dr. Hundert had recommended for her, especially because he had put weight, again, on Sara-Jane’s desire to have Dr. Hundert re-involved with IK.
[80] When asked whether, if the “hypotheticals” were real, he would still recommend an equal-time sharing schedule of alternating weeks between the parents, his evidence was that he would be concerned about an equal time-sharing schedule, if there was no commitment on the part of both parents to ensuring that IK attended her educational program at West Hill or medical appointments. Specifically, he said that, if these events were taking place, then he would be very concerned and would modify the recommendations about the parenting schedule that he had made.
Dr. Daniel Fitzgerald – Psychologist Retained by Howard Hurwitz:
[81] Howard Hurwitz asked Dr. Fitzgerald to conduct a psychological assessment of both parties, in order to determine whether (a) there were any mental health concerns or clinical diagnoses for either parent; (b) either parent’s psychological functioning impaired their parenting abilities; (c) there were any worrisome personality traits which might impact on their ability to parent their children; (d) there any concerning personality traits of either parent, which suggested difficulties in co-parenting with the other parent; (e) whether either parent’s personality profile showed any behaviours, which presented a safety risk in their parenting of their children; (f) to what extent each party was knowledgeable around parenting issues; and (g) to what extent each parent demonstrated insight into their behaviour and the other parent’s behaviour; and there were treatment recommendations, which would be suitable for either parent.
[82] Dr. Fitzgerald’s conclusions were as follows:
a. Sara-Jane “appears to have some difficulty using language to express her thoughts and ideas, especially those related to interpersonal situations. Her thinking can be disorganized, and she may not always be able to communicate her thoughts and ideas in a coherent and organized manner, especially when under stress”.
b. “Ms. White is highly defended and is reluctant to acknowledge any personal shortcomings or wrongdoings. In fact, her responses on the MMPI-2 suggest an unwillingness to acknowledge even simple human frailties that are typically endorsed by most people”;
c. Sara-Jane “will not acknowledge any culpability or role in the current family situation. She denies any of the allegations related to the earlier charges and does not acknowledge character or personality traits that are anything less than faultless;”
d. “The test results and clinical interviews suggest that Ms. White has difficulty understanding how to be successful and effective in interpersonal situations. She may also have difficulty understanding how she is perceived by others. She can give conflicting and contradictory statements.”
e. “Ms. White’s own description of her parenting suggests a tendency to be disengaged and remote. She offered formulaic responses to the questions I asked and did not display strong empathy to the subjective states of a child”; and
f. “I had the impression that she is reliant on the nannies and various caregivers who are in her home and who take on a major role in parenting.”
[83] Despite the findings above, Dr. Fitzgerald concluded that there was no presence of major mental health issues for Sara-Jane. While Dr. Fitzgerald did not find indications of major depression or mood disorder in Sara-Jane, he did opine as follows:
“There is some suggestion that she has difficulty processing information and understanding the perspective of others or how to manage herself in interpersonal situations. This can enter into the realm of parenting and can lead to difficulties in working with others in a cooperative and collaborative manner.”
[84] Dr. Fitzgerald ended his report about Sara-Jane by concluding that he believes that it will be best for the decisions regarding the children’s education to be vetted by a third party. While he does not suggest that Sara-Jane is a risk to the safety and well-being of the children, Dr. Fitzgerald did find that Sara-Jane:
“…..”may have difficulties working cooperatively and collaboratively with others in order to manage the educational and caregiving needs of her children.”
[85] With respect to Wayne, Dr. Fitzgerald’s conclusions were as follows:
a. “Mr. Kozun does not display symptoms of a clinical disorder or psychological disturbance. Nor does he exhibit personality traits that would prevent him from effectively co-parenting with Ms. White. However, he does appear to currently be undergoing psychosocial stressors and therefore may exhibit troublesome symptoms that are largely situational and transient in nature”;
b. “He is energetic, optimistic and capable of developing synergetic relationships with others”;
c. “Mr. Kozun does not display personality traits that would suggest that he presents a safety risk in the parenting of his children”;
d. “He does not appear to harbour resentment with regard to how things had transpired up to the point of his separation. He appears prepared to move forward and wants to have a constructive relationship with his ex-wife. He expresses the intent to do what is necessary in order for his children to have a relationship with their mother.”
e. “He is also very clear that he has a prominent role to play as the girls’ father, which includes helping them traverse these difficult times and become successful in their own lives;” and
f. “There are no treatment recommendations that would follow from this assessment.”
Dr. Ray Steinman – Addictions/Alcohol Assessment Doctor Retained by Howard Hurwitz
[86] As mentioned above, Howard Hurwitz retained Dr. Steinman, an addictions doctor, to complete an assessment of both parties in terms of alcohol-related issues, which had been raised.
[87] Dr. Steinman met with Sara-Jane on one occasion on January 10, 2019. Prior to this meeting, blood work and urine were requisitioned, the results of which were negative for liver indicators of drinking. Urine toxicology tests showed no issues. During the meeting, Sara-Jane completed a number of addiction-related questionnaires.
[88] In terms of Sara-Jane, Dr. Steinman’s assessment was that she had no issues with alcohol overuse and no addiction; she would not likely drink to excess while having the children; she presented with no worrisome behaviours and no safety risk issues; there were no indications of an addiction problem with alcohol and accordingly, he made no treatment recommendations for her.
[89] Wayne’s blood and urine work were requisitioned and taken on December 19, 2018, prior to his meeting with Dr. Steinman. The blood work came back negative for liver indicators for drinking; negative for binge drinking, except for one test; and the urine toxicology was negative. Wayne completed the same questionnaires as Sara-Jane did.
[90] However, in his five-page report, Dr. Steinman concluded that Wayne fit the diagnosis of Binge Alcohol Disorder, which he explained is a variant of alcohol use disorder and which could cause impairment of mental acuity during his binge use. He based this diagnosis on Wayne’s responses to the questionnaires and on the results of a PEth test. During his testimony, Dr. Steinman explained that a PEth blood test measures the level of phosphatidyl ethanol, a direct alcohol biomarker, in a person’s blood following alcohol consumption. Dr. Steinman testified that a normal PEth result is a score of 20 and Wayne’s PEth test came back at 52. According to Dr. Steinman, a score of 52 on the PEth test shows an elevated bilirubin score, which, he concluded, was an indication that Wayne was engaged in moderate to heavy drinking over the 1-2 weeks prior to taking the PEth test. Dr. Steinman’s assessment indicated that “the elevated bilirubin score could be significant and testing should be repeated”. In his report, Dr. Steinman had concluded that Wayne had Binge Alcohol Disorder and recommended that Wayne would benefit from a formal treatment program. However, Dr. Steinman had not asked Wayne to repeat the blood testing.
[91] During cross-examination, Dr. Steinman admitted that he had received a photograph from Sara-Jane’s lawyer on January 1, 2019, which he had failed to disclose to Wayne and upon which he had relied in reaching his conclusions. Dr. Steinman testified that, based on looking at a picture of Wayne, where he was sitting behind the wheel inside of car, he had concluded that:
a. “Wayne was not with it, in terms of his face, his years;”
b. “his hands were on the steering wheel which was concerning to me;”
c. “his facial expression is indicative of alcohol excess intake”; and
d. “It could be ten drinks or 25 drinks”.
[92] It was clear when Dr. Steinman testified that he had relied on the photograph, not knowing anything about it, including when it was taken.
Dr. Robert McMaster – the forensic psychiatrist who completed the second alcohol assessment of Wayne
[93] Wayne testified that he was shocked by the results of Dr. Steinman’s assessment. Wayne admitted that he had been in London, U.K., the week before he had his blood work completed and that he had attended holiday parties there, at which he had been drinking. Wayne attributed his positive PEth test results to this drinking. Wayne testified that upon receiving Dr. Steinman’s report, he immediately sought a second opinion. Specifically, Wayne went to Medcan and repeated the blood PEth test again on January 31, 2019. The second PEth test came back negative. Wayne then retained a psychiatrist, Dr. Robert McMaster, to complete an entirely new alcohol use assessment of him.
[94] Dr. Robert McMaster conducted an alcohol assessment relating to Wayne, dated December 23, 2019. Dr. McMaster’s report dated December 23, 2019 was 18 pages, very detailed and thorough.
[95] Dr. McMaster is a staff member at CAMH; an assistant professor at U of T; completes independent addiction evaluations of individuals; and has an active addictions practice for in- patients and out-patients.
[96] Dr. McMaster testified that he was retained by Wayne to complete an independent evaluation of Wayne, in terms of determining whether there were any mental health or addiction concerns. In addition to interviewing Wayne to obtain a psychiatric history, Dr. McMaster spoke with a number of collaterals, including a work colleague; Sara-Jane’s sister, Marli White; and two of the parties’ nannies, Gina and her daughter, Joni. Dr. McMaster also reviewed Mr. Hurwitz’s assessment report, dated February 2, 2019, and Dr. Steinman’s alcohol assessment report, dated December 18, 2018.
[97] Dr. McMaster randomly requested that Wayne do a PEth test on November 13, 2019. He completed further testing of Wayne, to obtain his liver enzymes, ethogluchorinide and, a urine panel, on October 22, 2019. The testing all came back negative; showing no elevation in Wayne’s liver enzymes.
[98] A third round of blood and urine tests were taken on January 31, 2019, all of which also came back negative.
[99] Dr. McMaster testified that the phosphate, PEth test is another bio marker doctors use when assessing alcohol use, along with other blood work and urine analysis. Specifically, Dr. McMaster testified that the PEth test looks at phosphates and lipids, which are modified by alcohol use. If one uses alcohol, it modifies into PEth. According to Dr. McMaster, the PEth test would show about 3 weeks of prior alcohol use. Dr. McMaster testified that, if someone has a positive PEth test in the lower range, between 20 to 80, it is an indication of alcohol consumption, but it is in the lower range of the PEth test. Dr. McMaster confirmed that Dr. Steinman concluded that Wayne has Binge Alcohol Syndrome because his PEth test in December 2018 came back at 52. After this PEth test, Wayne had three further negative PEth tests in January 2019, November 2019 and October 2020, on all of which, he scored under 20. Dr. McMaster testified that, looking at all four tests, one positive PEth test means that someone consumed alcohol contemporaneously when the test was done, in other words a positive PEth test means that someone consumed alcohol close to when the PEth test was taken
[100] Dr. McMaster’s assessment report concluded that Wayne did not have an alcohol use disorder. Dr McMaster also clarified that someone who drinks mild to moderate levels of wine does not have an alcohol use disorder in the same way that someone who binges during the Christmas holidays does not have a binge alcohol use disorder.
Dr. Mark Pearce – General Forensic Psychiatrist who completed a psychiatric assessment of Sara-Jane
[101] As stated above, in accordance with Mr. Hurwitz’s assessment recommendations, Sara-Jane retained Dr. Pearce to conduct a psychiatric assessment of her. Dr. Pearce testified at the trial as an expert witness regarding his assessment, the purpose of which was to determine whether Sara-Jane suffered from a mental disorder and required treatment.
[102] Dr. Pearce is a general forensic psychiatrist who works at CAMH and at Ontario Shores, a psychiatric hospital in Whitby. He prepared a 12-page report. Dr. Pearce could not conclude that Sara-Jane suffered from a major mental illness or a substance abuse disorder. He did not believe that Sara-Jane required medication, but he did believe that she could benefit from supportive counselling. Specifically, Dr. Pearce opined that communication skills were problematic for Sara-Jane and she could thus benefit from speaking with a social worker or psychologist regularly, to give her psychoeducation about how she presents to others.
[103] One of the concerns that Dr. Pearce addressed was that Dr. Rockman, the parties’ family doctor, had advised Mr. Hurwitz that he had concerns that Sara-Jane suffered from bi-polar disorder. However, in a letter to Dr. Pearce, dated March 19, 2019, Dr. Rockman advised that he has known Sara-Jane for 18 years as her family doctor and retracted his earlier statement that he had concerns that Sara-Jane might have bi-polar disorder.
[104] In cross-examination, Dr. Pearce testified that:
a. During his assessment, Sara-Jane did not disclose that she had been prescribed and taken Seroquel. Instead, Sara-Jane advised Dr. Pearce that she had been prescribed Ativan. (During cross-examination, Sara-Jane testified that this was an inadvertent error on her part). He would have wanted to know that Sara-Jane had been prescribed Seroquel, a drug normally prescribed for psychosis, schizophrenia and bipolar disorder, and more specifically, he would want to know how long she had taken it, what the dose was and what it was prescribed for;
b. He would have wanted to know that, in 2010, Sara-Jane had been referred to CAMH by a doctor she had seen at Medcan and, more specifically, that she had been referred to the emergency department at CAMH. Sara-Jane had failed to disclose this fact in giving Dr. Pearce her psychiatric history. In cross-examination, Sara-Jane testified that she did not agree with the referral from Medcan and never went to CAMH, thus, she did not feel it was necessary to disclose this to Dr. Pearce;
c. He would have wanted to know that Sara-Jane believed her home was being monitored by Rogers cable in the trees, since he had already noted some paranoia, as well as her belief that Telehealth was monitoring her; and
d. He did believe that Sara-Jane had some traits of paranoid personality disorder; her thinking was disjointed; and she seemed paranoid, but she did not have psychosis. Dr. Pearce believed that she had Cluster A personality disorder traits; paranoia and a flightiness to her interactional and communication style, but she did not have enough of these traits to meet a personality disorder.
Evidence about IK
Gayle McIntosh – Prior Vice Principal at West Hill Collegiate
[105] Gayle McIntosh, the prior Vice-Principal at West Hill from 2014 to 2020 has a Bachelor of Physical Education, an Education Degree and a Masters of Education, with her Level 3 qualifications for Special Education.
[106] Ms. McIntosh testified that, in 2016, IK became a member of one of two classrooms at West Hill, in a special program for developmentally delayed and disabled students. In particular, Ms. McIntosh confirmed that each classroom has 7 students; one special education teacher and two educational assistants. A student can only become a member of the special program once they are identified as a developmentally delayed student through the IPRC process. In addition to literacy and numeracy skills, students in this special program gain skill development and adaptation skills, including how to do laundry, meal preparation, cooking and activities. The children have access to a smart board and iPads.
[107] In terms of IK, Gayle McIntosh described her as follows:
a. IK is a sweet, lovely girl, with Rett’s Syndrome. Her issues are generally behavioural;
b. IK reads at a grade 2-3 level;
c. IK had difficulty transitioning into Grade 9. Wayne and Sara-Jane had provided an ABA specialist, to assist IK with the transition;
d. IK likes to have the full attention of adults. She does not like to be around other students;
e. IK refuses to comply with tasks;
f. IK is strong-minded and when she does not wish to do something, she exhibits resistance behaviours, including kicking, screaming, throwing things, laying on the floor, pounding her heels on the floor and writhing on the floor;
g. There have been times when IK could not be consoled and was unrelenting, screaming, crying, kicking, and harming herself;
h. There is a safety plan for IK so that if she is kicking the floor, a mat will be provided so that she will not harm her heels or knees. If necessary, IK will be moved to a calm environment, with noise cancelling headphones- sensitive room with low lights, gym mats and quiet and protective equipment; and
i. IK has progressed socially over the five years she has been there.
[108] In terms of the school’s interaction with Sara-Jane and Wayne, Ms. McIntosh testified that:
a. To her recollection, Sara-Jane came to one parent-teacher meeting for IK and attended one school meeting by phone and not in person, during the four years that she worked at West Hill;
b. When the school would call Sara-Jane about IK, she would tell the caller that Gina was responsible for answering any questions about IK and, as a result of the school requiring that a parent be available to discuss these issues, the school began to communicate through Wayne;
c. Wayne is the more available parent to the school;
d. She noticed that IK was having difficult transitions both when IK was going to Sara-Jane’s house and when she came to school on Monday mornings, after she had been at Sara-Jane’s house on the weekend;
e. In the Fall of 2019, IK was having a particularly difficult time adjusting to school and was inconsolable. The school had arranged a meeting with the school psychologist; the low-incident coordinator; the special educational consultant; IK’s teacher, the principal and both parents. Sara-Jane did not attend the meeting. The purpose of the September 2019 meeting was to determine a plan of action for IK and to discuss whether she was on appropriate medications. A suggestion was made that Wayne have a doctor’s consultation about IK’s medications;
f. Wayne was professional and available. He was willing to try and help the school in any way they felt IK could be assisted. Wayne was thankful for the work the school did and wanted to follow up with the school after he had the medication consultation. Wayne worked with the school on a team approach; and
g. Sara-Jane was difficult to deal with; avoided directly answering questions; was verbally abusive; and was generally adversarial.
[109] In terms of the school’s experience with Sara-Jane, Gayle McIntosh testified that her experience with Sara-Jane was that she was adversarial in her communications; was reluctant to come to school meetings without a lawyer; and was reluctant to sign paperwork for IK’s IEP and without a lawyer reviewing it. She heard Sara-Jane use abusive language over the phone during a meeting with the school. Sara-Jane had used abusive language with her.
Jenny Brown – IK’s teacher at West Hill Collegiate currently and for the past three years
[110] Jenny Brown is a special education teaching, working in the developmentally delayed specialization program at West Hill. She has been a teacher for 24 years and been at West Hill for four years.
[111] Jenny Brown has been IK’s teacher for 3 years. She described IK as a wonderful girl who behaves well when she is engaged. She testified that IK is the type of student a teacher can negotiate with. She also testified that IK needs constant reassurances about the upcoming schedule so she can manage her expectations.
[112] In terms of academics, Ms. Brown testified that IK is at a grade 2 level under the Ontario curriculum. She described IK as a good reader, but because of her speech and difficulties with expressive language, not everyone can understand her. She knows her numbers from 1 to 100 and can tell time, although she does not necessarily understand the passage of time.
[113] Ms. Brown testified that she has a lot of communication with Wayne through IK’s agenda and email. She said that she and Wayne share information about IK at least a few times a week and she communicates about IK with Gina as well. Ms. Brown explained that Gina is the adult who brings IK to school every day.
[114] Ms. Brown confirmed that she has had no communication with Sara-Jane this academic year, since September 2020. She testified that her communication with Sara-Jane is neither regular nor consistent. Ms. Brown recalled that IK was having a very rough day in the Fall of 2019. She tried to contact Gina and could not reach her. Wayne was out of town. Ms. Brown thus called Sara-Jane. When the school finally reached Sara-Jane, Ms. Brown told her that they were having difficulties with IK and advised her that she had to pick IK up. Sara-Jane responded, saying, “Call Gina; IK has a nanny”.
[115] Ms. Brown confirmed that in this school year, IK has not come to school when she is in Sara-Jane’s care, which means that every Wednesday and every other Thursday. IK has missed her school routine.
Dr. Joel Hundert’s – Psychologist who runs Behaviour Innovations/Children’s College School
[116] Dr. Hundert and his wife, also a psychologist, founded the Behaviour Institute in 2000, in Hamilton, ON, as well as the school-based program known as the Children’s College. Behaviour Innovations specializes in ABA/IBI treatment for children diagnosed on the autism spectrum. Dr. Hundert is the Director of Children’s College and a board-certified psychologist.
[117] IK attended the Children’s College school between September 2005 until August 2011. She was about 4 years old when she began coming to the school. Dr. Hundert testified that when IK began at the school, she was not walking independently; had very little self-help skills; and was very demanding and self-injurious. With ABA treatment, IK made gains and began to communicate, using pictures. She began to show self-help skills and follow tasks.
[118] In September 2011, IK transferred from the Children’s College to Scarborough Village Public School because the parents wanted her to attend a school with other children, for socialization purposes. Dr. Hundert testified that his agency was involved in IK’s transition to Scarborough Village, to assist in her integration.
[119] A Behaviour Consultation Report, dated April 6, 2015, prepared by Dr. Hundert [Exhibit #10], was referred to by Dr. Hundert. He testified that the report was prepared at the request of both parents because Sara-Jane had been concerned that IK was not doing well at Scarborough Village and wanted the school to implement strategies to help IK continue to progress.
[120] Dr. Hundert explained that this type of assessment is focused on IK’s behaviours, to try and determine what triggers her behavioural reactions and develop strategies, to assist IK and the professionals working with her in order to implement changes in her behaviour.
[121] Similarly, in 2019, Dr. Hundert was asked to complete an assessment on IK’s behaviours at West Hill. The parties engaged Dr. Hundert, to complete an assessment about behavioural management, as recommended by Mr. Hurwitz in his s.30 assessment report. The purpose of the assessment was to have an intervention, which could be used in all settings, to reduce IK’s reactivity to transitions and change. Essentially, the assessment was to have Dr. Hundert design therapies for the parents and school to follow in an effort to reduce IK’s problem behaviours in all settings.
[122] The problem behaviours, according to Dr. Hundert are, yelling, flopping, self-injury, and aggression, which tend to occur when IK is being asked to do undesired or difficult tasks. Dr. Hundert found considerable inconsistencies the ways in which the adults engaged with IK. The adults were Wayne, Sara-Jane, Gina and Joni (Gina’s daughter).
[123] Dr. Hundert testified that if both Wayne and Sara-Jane agreed in principle to his recommended program, they would then pilot the procedures in both households and both parents and all adults working with IK would have to follow these proposals consistently, regardless of IK’s settings
Sara-Jane’s Position respecting Custody and the Parenting Schedule
[124] Throughout the trial, Sara-Jane’s position was that, despite the unequal parenting schedule that has been in place since 2018, where the children are with her 5 nights out of 14, she had remained the primary caregiver to the children after separation: Further, Wayne relies on caregivers when he is with the children. As well, Wayne had repeatedly alleged that she has mental health issues, even though Dr. Fitzgerald found that neither party has a mental health disorder. In addition, Wayne fits the diagnosis for binge-alcohol drinking disorder and has no insight into his own drinking patterns.
[125] Sara-Janes asserts that she was “shocked” when Howard Hurwitz recommended that Wayne have sole decision-making authority for the children. She has serious concerns about Mr. Hurwitz’s assessment. [However, Sara-Jane did not challenge the methodologies used by Mr. Hurwitz in his s.30 assessment at trial.]
[126] Throughout the trial, Sara-Jane asserted that she did not believe that West Hill was the right school for IK because she does not believe that IK’s needs are being met there. Instead, Sara-Jane proposed and advocated that IK needs will only be met by her attending a private, ABA school recommended by Dr. Hundert.
[127] Sara-Jane seeks an order for joint-decision-making with Wayne on all child-related issues and an equal parenting-time parenting schedule where IK and GK rotate between households, on a week-about basis.
[128] Sara-Jane acknowledges that the parties employed nannies and caregivers for the children. She asserts however, that while the caregivers were present, to manage and care for both children, they did not direct the girls’ future. It was she who was primary and instrumental in both girls’ education and activities.
[129] Sara-Jane submits that West Hill is not the appropriate school for IK, for the following reasons because she:
a. does not believe the educational assistants in the classroom are properly trained and the student-to-teacher ratio is 10 to 1;
b. believes there is too much reliance on technology at West Hill; the school does not have the resources required to help IK; and
c. believes there are “no motivators” there for IK; and West Hill does not have a safety plan in place for IK.
[130] Sara-Jane did not raise any alcohol-use concerns about Wayne in her pleading or affidavit material before Dr. Steinman raised this in his report, dated January 4, 2019. Not a single letter was sent by her counsel to Wayne’s counsel during the litigation and no concerns were raised by Sara-Jane about Wayne’s alcohol use let alone its impact on his relationship with the children. She did not raise a single concern with Dr. Fitzgerald about Wayne’s alcohol use. After Dr. Steinman’s report was released, Sara-Jane began to assert and fixate on Wayne’s purported Binge Alcohol Disorder. In fact, she deemed that it had caused him to have a personality disorder as well. None of the experts who testified at trial found so much as alluded to a possibility that Wayne has a personality disorder.
[131] Sara-Jane consistently gave evidence throughout the trial that she believes Wayne has Binge Alcohol Disorder. Sara-Jane testified that in 2015-2016 was when she started to believe that Wayne was having a problem with alcohol. However, Sara-Jane also admitted that she did not raise any concerns about Wayne’s alcohol binge disorder in her Application was issued in 2018. When asked by Wayne’s counsel as to why did not raise this concern given that her Application was issued two years after Sara-Jane had testified she started to notice Wayne had an issue with alcohol overuse, she stated “it wasn’t mentioned because [she] say it more as a developing personality disorder”.
[132] Sara-Jane admitted that, when Wayne brought a motion seeking temporary custody of the children for decision-making purposes, and she brought a cross-motion to change IK’s schooling, in her affidavit, sworn on October 16, 2019, which dealt with parenting issues only, she did not raise any concern about Wayne’s alcohol intake. When asked in cross-examination why she had not raised this concern, she responded “I’m not sure why it wasn’t included but Mr. Simard (her then counsel) left the firm.;”
[133] Sara-Jane admitted that she had been given a further report regarding alcohol tests that Wayne had undertaken at Women’s College Hospital (“WCH”); the blood tests were negative, and the doctor at WCH did not think that Wayne had an alcohol disorder. Yet, she advised that she still believed that Wayne needed more alcohol-use disorder tests.
Wayne’s Position Respecting Custody and the Parenting Schedule of the Children
[134] Wayne submits that he requires sole decision-making authority in order to prevent Sara-Jane from sabotaging efforts to put arrangements in place that are in the bet interests of the children. Sara-Jane’s inability to effectively communicate results in every parenting decision being delayed such that the children end up suffering. He relies on the evidence at trial that GK did not receive therapy recommended by Mr. Hurwitz and IK did not received the supports, which Dr. Hundert has recommended.
[135] Wayne submits that GK should spend fairly equal time with both him and Sara-Jane. However, IK’s best interests require that IK reside in one stable household during the week so that her school and therapies can be facilitated without delay.
[136] Wayne’s position at trial was that both IK and GK love Sara-Jane and it is important that both girls have a meaningful relationship with their mother. However, he did not feel that he could communicate with Sara-Jane, as she had demonstrated that she is unwilling and unable to communicate effectively with him.
[137] It was Wayne’s position that before the separation, he had tried to let Sara-Jane know that he was concerned about her behaviours, her aggressiveness toward and the alienating manner in which she communicated and interacted with the health and school professionals involved with IK and GK. Sara-Jane had been unable to recognize the part she plays in these difficulties. Instead, Sara-Jane was insistent on blaming Wayne for such difficulties.
[138] It was also his submission that higher expectations can be placed on IK and that, if consistent expectations were place on her in both households, IK’s resistance behaviours would reduce. Wayne’s position is that Sara-Jane allows IK to do what she wants to do, such as not joining the family during mealtime and eating in front of the television in her room, in order to avoid the possibility of IK engaging in problematic behaviours according to him. While this approach may be easier for the parent in the short run, it is not in IK’s best interests in the long run.
[139] Wayne submits that he is prepared to put in place the therapies and supports that are needed to assist IK. He believes that IK ought to continue at West Hill and additional therapies ought to be introduced such as speech therapy and the therapies recommended by Dr. Hundert. Wayne expressed that he is committed to finding an appropriate transition program that will be available to IK as an adult when it is time for her to leave West Hill.
Kozun Family Trust
[140] In terms of the Kozun Family Trust (“the Trust”), Wayne testified that it was settled in 2015; Wayne, Sara-Jane and Gina are the trustees of the Kozun Family Trust; and Sara-Jane and the two children are the beneficiaries. During his examination in chief, Wayne testified that he lent the Trust monies, as a prescribed rate as per the Canada Revenue Agency, and the Trust used the monies to purchase a vacation property in Cape Breton, Nova Scotia, as well as invested some funds. Until recently, the Trust had cash and investments totaling approximately $200,000. The Trust distributes some income to each of the beneficiaries annually, and, until the Covid-19 health crisis began, earned some modest rental income from the Nova Scotia property. As at the date of separation, the Trust owed Wayne the sum of $1,200,000, which funds had been advanced by Wayne to the Trust, to purchase the Nova Scotia property. The debt owing to Wayne was since reduced by $250,000, as the Trust paid back some funds to Wayne in late 2018.
[141] When asked about the income the Trust earned from the Cape Breton property, Wayne testified that its best year was 2019 when the Trust earned $30,000. In 2020, Wayne explained, given the closure of the Atlantic provinces as a result of the Covid-19 health crisis, the Trust’s ability to earn rental income was severely depressed. Wayne testified that as at the trial, the sum of $950,000 plus accrued interest was owed to him by the Trust pursuant to the promissory note.
[142] In her opening statement at the outset of the trial, counsel for Sara-Jane made no submissions regarding the Trust. By contrast, counsel for Wayne, raised the Trust as one of the issues to be determined at trial in his opening trial statement. Counsel for Sara-Jane expressed surprise, indicating that as far as he understood, the Trust issue was not an issue to be dealt with at trial. Counsel for Wayne advised the court that in the parties’ property settlement, they had agreed that either party could raise the issues related to the Trust at trial. Sara-Jane’s counsel accepted Wayne’s position and, accordingly, Wayne made submissions that the Court make an order to wind up the Trust.
[143] In her closing submissions, Wayne’s counsel asked the Court to make specific orders relating to the Trust. The terms had been included in the draft, proposed final order that Wayne had provided to the Court at the outset of the trial (attached to his Opening Trial Statement) which was provided to Sara-Jane’s counsel in advance of the Trial. In it, Wayne indicated that he would be seeking the following relief at trial:
a. The Trust was to be wound up by either of the following options:
i. Wayne would have the right to purchase the Cape Breton property from the Trust for the sum of $1,100,000 and the balance of the Trust was to be wound up, including payment to him of the balance owing to him at that time, pursuant to a promissory note (as of the start of the trial, $950,000 plus interest) and the balance of the Trust assets being paid out to the beneficiaries (Sara-Jane, IK and GK), in equal shares, pursuant to the Trust Agreement, dated October 2, 2015 (Exhibit #25 at trial); or
ii. Alternatively, the Cape Breton property was to be listed for sale and sold, with the balance of the Trust to be wound up as set out in i. above. Sara-Jane, as a Trustee, was to sign all documentation required for both the listing and the sale/closing;
[144] Wayne proposed that upon the wind up of the Trust, Wayne was to receive the amount owing to him at that time under the terms of the promissory note and Sara-Jane was to receive her one-third interest in the Trust, as follows:
a. Sara-Jane would receive one-half the amount paid to Wayne on account of the promissory note less one-half of the amount paid to Sara-Jane on account of her one-third beneficial interest in the Trust (essentially, an “if and when” division) on account of equalization of net family property LESS; and
b. Any costs that this Court might order Sara-Jane to pay to Wayne, Wayne could set off against his obligation under i. above, provided that costs were ordered and, by the time of the wind up of the Trust, Sara-Jane had not yet paid him.
[145] Although the Trust Agreement had been made an Exhibit at trial (Exhibit #25), the promissory note was not provided to the Court and, in my view, the evidence before the Court about the Trust is scant, as can be seen in the following two paragraphs.
[146] Sara-Jane, as the Applicant, testified first during the trial. She did not give any evidence about the Trust issue in her examination -in-chief. In cross-examination, she stated that she had retained “Dentons”, a law firm, to assist her with legal issues related to the Trust. She was unable to clarify in what capacity she had retained the firm – Trustee, Beneficiary or in both capacities. She acknowledged that she was agreeable to the Trust being wound up and agreed that this would include Wayne being repaid the amount owing to him by the Trust, pursuant to the terms of the promissory note. She was not asked any questions in re-examination. [Nor did she seek to provide any reply evidence after Wayne’s testimony was given.]
[147] When Wayne testified, he gave evidence about the Trust in his examination-in-chief, in terms of how it was funded, the rental income it earned, how annual distributions were made, and what remained owing to him by the Trust as per the promissory note. In cross-examination, Wayne said that he had loaned the Trust money, which was documented by a promissory note. He confirmed that the Trust has a bank account and that he is the individual with authority over the account. When asked whether he had withdrawn any funds from the Trust post-separation, he said that he had paid Trust expenses such as property taxes, utility expenses and property insurance, out of the Trust’s bank account. He also acknowledged that on one occasion, by inadvertence only, he had, in error, paid a nanny by way of an email transfer from the Trust account. However, as soon as he realized that he had done that, he reversed the transaction. Wayne did not give any evidence about the Trust in re-examination.
[148] Had the parties not entered into what they have termed “Partial Minutes of Settlement”, signed by the last of them to sign, on November 9, 2020 (a week before the trial was scheduled to start), the value of Sara-Jane’s beneficial interest in the Trust and the amount owing to Wayne by the Trust as of Valuation day would have been issues that would have been properly dealt with at trial in the determination of Sara-Jane’s claim for an equalization payment. Neither party claimed any relief in relation to the Trust in a pleading that he/she filed in this case. Further, as mentioned above in these Reasons for Decision, neither referred to any statutory or other legal authorities in support of the orders, which he or she sought at trial.
[149] On November 19, 2020, in the middle of the trial, counsel provided the Court with a copy of the Partial Minutes of Settlement relating to the property issues. The Partial Minutes of Settlement, in which the parties stated that they had agreed to a “partial, final settlement of the issues of equalization of net family property” (with the exception of the Kozun Family Trust) and post-separation adjustments as against property, on the terms set out in the document, were reviewed by me.
[150] Most particularly, in paragraph 1, the parties agreed that that equalization payment to be paid to Sara-Jane under the agreement did not include “any amounts for either party with respect to the Kozun Family Trust (i.e. it does not include the funds owing on the promissory note by the Trust to the Respondent nor any value for the 1/3 beneficial interest in the Trust held by the Applicant). The Kozun family Trust was stated to be part of a separate provision. In that provision (paragraph 6 of the Partial Minutes of Settlement), the parties agreed as follows:
“6. The Kozun Family Trust will be addressed separately, and does not form part of the above property settlement. Either party is at liberty to pursue any claims with respect to the Kozun Family Trust in either the current action or in a separate action. These claims include, but are not limited to claims that either party may have to include the trust in the parties’ respective net family properties (including the value of the Applicant’s trust interests and the money owing by the Trust to the Respondent on the promissory note), claims to wind up the trust, to sell the trust property, for an accounting, or other claims relating to the Trust or Trustees.”
[151] Further, in paragraph 8 of the Partial Minutes of Settlement, they agreed that the Minutes did not settle the issues of retroactive or ongoing child support or spousal support, or the post-separation payments/adjustments (particularized in the paragraph), which had not been included in paragraph 2 of the Minutes, and could be claimed by either party as against any support obligation or as against any resolution of the Kozun Family Trust. According to paragraph 9 of the Minutes, the parties agreed that, with the exception of the Trust, which had been addressed in paragraph 6 of the Minutes (which I quoted in paragraph [150] above) and the post-separation adjustments referred to in paragraph 9 (actually, 8) of the Minutes, which could be claimed against support or the Trust, paragraphs 1 -8 represented a full settlement of all property issues (including equalization, ownership, constructing or resulting trust issues, prejudgment and post-judgment interest, and content division) in this case. According to paragraph 10, “[w]ith the exception of any costs pertaining to the issue of the Kozun Family Trust, neither party was to pay costs to the other in relation to the property issues in this proceeding,” [sic]. (The document contains a comma at the end of the sentence, which I take to be an inadvertent error.)
[152] During the course of the trial, I was informed that the parties had settled the child and spousal support issues. In the parties’ Partial Minutes of Settlement, which appear to have been signed by the Applicant on December 21, 2020 and the Respondent, on December 22, 2020, and which I received from the court staff in response to my enquiry about the property agreement (which had actually been sent to the Court on November 19, 2020), the parties indicate that they had agreed to a settlement of the issue of Christmas access, retroactive child and spousal support and ongoing spousal support. I have reviewed the settlement terms contained in those Minutes. No reference is made to the post-separation payments/adjustments, which were referred to in paragraph 8 of the property-related Minutes. In paragraph 11, the parties agreed that costs related to the support-related terms of the Minutes were reserved to the trial judge.
[153] Having considered, most particularly, Sara-Jane’s evidence – that she had retained Dentons to address the Trust issues; her counsel’s expression of surprise when Wayne’s counsel advised the Court that Wayne would be seeking relief relating to the Trust during the trial; the fact that he conceded that Sara-Jane had agreed in the partial property agreement that either party could raise the Trust issues during the trial or at some other time, without, to my recollection, reviewing the relevant term in paragraph 8 of the partial property agreement; the scant evidence adduced at trial about the Trust; Wayne’s evidence that he did not want to propagate conflict in another forum with Sara-Jane and, accordingly, wished to have all issues decided at this trial, including the Trust, so that the litigation between the parties would be at an end; I am not persuaded that the parties’ agreement was that the Trust issue could be dealt with a week later at trial, but that in pursuing the issues that had not been settled at a later point, they could proceed to pursue them in this action (FS-18-00190) or a new action.
[154] Had they agreed that a party could proceed with all of the claims referred to in paragraph 8 of the partial property settlement at the upcoming trial, I would have expected that the wording of the partial Minutes would have been “….either at the trial scheduled to start on November 23, 2020” or in a separate action”, or words to that effect. Instead, the terms of paragraph 8 refer to the right of the parties to pursue “any claims with respect to the Kozun Family Trust in either the current action or in a separate action”. Further, the wording of paragraph 8 refers to either party’s right to pursue “any claims with respect to the” trust, which included not only the equalization of the values of the beneficial interest and amount owing under the promissory note, but also “claims to wind up the trust, to sell the trust property, for an accounting, or other claims relating to the Trust or the Trustees”. Again, neither party had made any of the just-mentioned additional claims in his/her pleadings in this action. I ascribe no blame to either party or his/her counsel, but am concerned that, despite Wayne’s counsel’s submission that, according to the partial property settlement, either party could address the Trust issues during the trial and Sara-Jane’s concession in response to that submission of Wayne’s counsel submission, that she had agreed in the partial property agreement that either party could address the Trust issue at trial, that, in preparing for trial, Wayne may have believed that the wording of paragraph was wide enough to permit him to raise the issue at trial, even though that was not what he initially understood the term to mean. Even if I am wrong in my concern about the meaning of “in this action”, contained in paragraph 8 of the partial property settlement, and both parties understood that the term anticipated that a party might address the Trust issues which is why Wayne made his request for relief in relation the Trust at the upcoming trial, I am nonetheless not satisfied that Wayne is entitled to the Trust-related relief he seeks.
[155] At best, as can be seen in paragraph 8 of the partial property agreement, either party was at liberty to pursue any claims with respect to the Kozun Family Trust in the current action. Again, other than for the equalization claim, neither party made any claims in his/her pleadings, which could be said to be claims “to wind up the trust, to sell the trust property, for an accounting, or other claims relating to the Trust or the Trustees”. Nor did Wayne assert any other basis/bases upon which his request for the Trust-related relief was grounded. Had either party done so, he/she would have to have first considered the rights of the third Trustee (Gina) under the terms of the Trust Agreement and the rights of the other beneficiaries under the Trust Agreement, one of whom is a minor and the other of whom is not a minor but who would likely be a “special party”, potentially requiring the assistance of a litigation representative at trial.
[156] The evidence that was elicited from Sara-Jane at trial only satisfies the Court that she is content with Wayne’s proposal that the trust be wound up. Having read the partial property agreement, I am satisfied that she agrees that she has a one-third beneficial interest in the Trust. Finally, she agrees that either party may seek to “include the trust in the parties’ respective net family properties (including the value of the Applicant’s trust interest and the money owing by the Trust to the Respondent on the promissory note)”. In his evidence, Wayne did not refer to any other issues about which he understood or had been advised by Sara-Jane that she agreed to. No evidence was led by Wayne on key and important issues, including but not limited to, whether he anticipated that the amount to be equalized would be based on the values of Sara-Jane’s interest in the Trust and the amount owing to him under the terms of the promissory note on V-day or at the date that the “equalization” was effected; how he had arrived at the $1,100,000.00 purchase price contained in his request for relief; and upon what factual basis he was basing his obvious claim for an order for security for costs against Sara-Jane. When one also considers the issues of concern set out in the next paragraph of these Reasons for Decision, it is simply impossible for the Court to proceed to determine whether Wayne is entitled to the relief he seeks in relation to the Trust. Given the scant evidence that Wayne adduced during the trial on the Trust-related requests he was making, the orders requested strike me more as a proposal made in an effort to resolve any issues that would not be resolved by this trial, rather than claims with respect to which Wayne had to prove by putting forward a sufficient evidentiary basis.
[157] Wayne provided this Court with no authority, which supports his right to seek trust-related relief in this case (between him and Sara-Jane only) in the absence of any evidence that the third Trustee had ever been consulted about any of the matters in respect of which he seeks orders in this case. In my opinion, he was not entitled to ignore the rights of all Trustees to be consulted about issues requiring the Trustees’ involvement (see Paragraph 15 of the Trust Agreement). He did not testify as to whether he had consulted the third Trustee, Gina, in relation to the Trust issues. Moreover, given that Wayne is seeking orders, which include an order that the trust be wound up, notice had to be given, in my view, to the Office of the Children’s Lawyer. GK is a beneficiary under the trust and is a minor. Although IK is 18 years old, she has special needs. Consideration had to be given as to whether the OCL was the appropriate government body to whom notice had to be given in relation to IK’s interests as a beneficiary of the Trust and, if not, then whether IK is in need of a litigation representative or, at a minimum, the Office of the Public Guardian and Trustee had to be provided with notice of the orders being sought in the case. I do not ascribe any inappropriate motives to Wayne for proceeding to seek the relief that he has, but am concerned that he has done so without compliance with obligations he has or may have in relation to the rights of the third Trustee under the Trust and the rights of the children.
[158] In view of the above and despite any right that the parties may have between themselves each had to address the Trust-related issues referred to in Wayne’s draft, proposed final Order, Wayne’s requests for orders relating to the Trust are dismissed, “without prejudice” to either party’s right to proceed with the claims referred to in paragraph 8 of the Partial Minutes of Settlement, apparently finalized on November 9, 2020, in a case that either party may start in the future. In my opinion, the better course at this point would be for a party who seeks to have any of the issues, which the parties agreed that either of them could proceed with “in this action or in a new action” to start a new case (action). In this way, the claims that are referred to in paragraph 8 of the Minutes can be pleaded in a clear manner such that not only the parties but any other person(s) who may be a necessary party(ies) in the case will be able to address them in the absence of the details of claims made and facts put forward in support of and in response to them in the case that led to the trial. Amending the pleadings in this case would undoubtedly lead to confusion on the part of other potential parties and the Court who presides over the determination of the issues referred to in paragraph 8.
Analysis
[159] Wayne asks that the Court grant a divorce to him. Although the Court is aware of the parties’ date of marriage and the date of separation, the other evidence that must be adduced is, for ease of explanation and reference, that which a party must provide, if he/she were seeking a divorce by way of a motion: See Rule 26(5) of the Family Law Rules and Form 36. I am sure that the evidence was not provided as part of Wayne’s evidence at trial dur to simple inadvertence. Rather than require that the parties and counsel re-attend before me so that their evidence can be provided orally, and noting that both parties sought a divorce in their respective pleadings, by Endorsement, dated December 28, 2020, I invited either or both parties to serve and file a Form 36 Affidavit in support of his/her respective claims within six days.
[160] Having considered the evidence contained in Wayne’s Affidavit for Divorce, sworn on December 29, 2020, I am satisfied that reasonable arrangements have been made of the support of the children, having regard to the Child Support Guidelines and Ontario Tables applicable where support is being paid for the children. I am also satisfied that Wayne is otherwise entitled to an order granting a divorce.
[161] Except for the parties’ respective claims for a divorce and the Trust issues which I have discussed above, the trial before me was about the children. Sara-Jane seeks an order for joint custody of the children and an order that the children spend equal time with each parent on a “week-about” basis. Wayne seeks an order for sole custody of the children; an order that GK spend fairly equal time with each parent; and an order that IK reside with the parents according to the following schedule:
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday
Wayne both children
Wayne both children
GK with Sara-Jane IK with Wayne
Wayne both children
Wayne both children
Wayne both children
Wayne both children
Wayne both children
GK with Sara-Jane IK with Wayne
GK with Sara-Jane IK with Wayne
Wayne both children
Sara-Jane both children
Sara-Jane both children
Sara-Jane both children
[162] Neither party referred to any statutory or other legal authority during the trial. I appreciate that the issues of custody and the residency schedules of the children are fact-driven issues. Nonetheless, they must be decided in the context of the law applicable to them.
[163] Section 16 of the Divorce Act (“DA”) governs the determination of the parenting issues outstanding between Wayne and Sara-Jane. Section 16(1) of the DA provides that a court may, on the application by either or both spouses, make an order respecting the custody of or the access to, any or all children of the marriage. Therefore, both Sara-Jane and Wayne have an equal entitlement to seek custody of IK and GK.
[164] Sections 16(4), (5), (6) and (7) of the DA provide as follows:
Joint custody or access
(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.
Access
(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.
Terms and conditions
(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.
Order respecting change of residence
(7) Without limiting the generality of subsection (6), the court may include in an order under this section a term requiring any person who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child.
[165] Section 16(8) of the DA mandates that the court consider only the best interests of the child when making a custody or access order and the court must do so by reference to the condition, means, needs and other circumstances of the child.
[166] The court cannot consider the past conduct of a spouse unless the conduct is relevant to the ability of that parent to act as a parent to the child: S. 16(9) of the DA.
[167] Finally, in making a custody or access order under, s.16(10) provides as follows:
Maximum contact
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[168] Unlike the CLRA, the provincial statute which governs custody claims of unmarried parents and custody claims a married spouse has made under the provincial statute only, the DA does not contain an enumerated set of factors that the court must consider when determining what is in a child’s best interests. However, courts in Ontario have often utilized the factors set out in s.24(2) of the CLRA when determining what is in the best interests of a child in cases that are governed by the DA. Section 24(2) of the CLRA is reproduced below:
S. 24(2) Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person, 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. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.
[169] On June 21, 2019, an Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act received royal assent. The amendments to the DA were initially scheduled to come into force in July 2020. The date was delayed, to enable the provincial family law statutes to be amended, conform to the DA amendments. The DA amendments are currently scheduled to come into effect in the Spring of 2021.
[170] The amendments to the DA maintain the best-interests-of-the-child test as the only consideration for parenting decisions under the DA but also includes various terms aimed at promoting the best interests of the child. For example, the DA amendments create a duty on parents to exercise their responsibilities to their children in a manner consistent with the best interests of the child.
[171] For the first time, the DA will contain its own list of best-interests-of-the-child criteria, highlighting key factors relating to child’s well-being. This list will be of assistance to parents, family justice professionals and the judiciary in determining what is best for a child in a particular case.
[172] The proposed DA amendments will substantially change the language that the court will use in determining “custody/access” issues. The government has moved away from the labels of “custody” and “access” toward a regime, which authorizes a judge to make orders in relation to “parenting time” and “decision-making responsibilities”. What is now called a custody order (both sole and/ joint custody) will be called a parenting order. A parenting order will address both parenting time (with no reference to custody or access) and decision-making responsibility.
[173] In addition to the list of criteria referred to in paragraph [186] above, the DA amendments identify a “primary consideration” in the determination of the arrangements which are in a child’s best interests. The primary consideration specifies that a child’s safety, security and well-being are the most important factors to consider.
[174] The list of “best interests” criteria in the DA amendments is a non-exhaustive list. The list does not prioritize any one criterion over another, with the exception of the primary consideration. No single criterion is determinative, and the weighting for each criterion will depend on the circumstances of the particular child.
[175] The “best interests” factors that a court must consider as listed in the new DA provisions are as follows:
a. The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
b. The nature and strength of the child’s relationship with each spouse, siblings, grandparents and other important persons;
c. Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
d. The history of care of the child;
e. The child’s views and preferences;
f. The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including indigenous upbringing and heritage;
g. Any plans for the child’s care;
h. The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
i. The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate;
j. Any family violence; and
k. Any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the children.
[176] Again, the list is a non-exhaustive list. Thus, the court must also consider any other factor that is relevant in the case before the court.
[177] While it is the current legislation that governs this case at this time, the approach taken in the DA amendments is, in my view, a better one generally in cases relating to children as the language, in and of itself, is less adversarial. Although the terms in the proposed legislation do not govern this case, the discretion the Court has under the current provisions of the DA amply enable a judge to make orders using the new language.
[178] Sara-Jane and Wayne’s relationship is an extremely high-conflict one. Unfortunately, after the separation, Sara-Jane has demonstrated a complete inability to co-parent with Wayne. I base this conclusion on the evidence I heard and read during the course of the two-week trial, relevant and important details of which are as follows:
a. Sara-Jane purportedly refused to continue to communicate with Wayne through OFW because her subscription to the application had ended and it was a cost that she preferred not to have to incur at that time;
b. Sara-Jane acknowledged that she had received a text from Wayne, indicating he had received the results of recent genetic testing for IK and had posted the report on OFW, and admitted that she did not view the report or follow up with the genetic clinic at Sick Kids or with Wayne to obtain the genetic results. Instead, she read the genetic screening only after the trial commenced;
c. Sara-Jane was aware that IK had been referred to a neurologist, Dr. Munn, by her family doctor in 2019 and despite being told by Wayne about the date and time of the appointment and being invited to participate in the appointment, she did not attend the appointment, inquire of Wayne as to how the appointment went or follow up directly with Dr. Munn or the family doctor to find out about what transpired;
d. Sara-Jane was aware that IK had an appointment with the orthopaedic surgeon for her scoliosis in December 2019, and was invited by Wayne to attend the appointment, but she did not participate;
e. Sara-Jane refuses to communicate with Wayne, other than in writing, often ignores his communications, and is not responsive to basic questions he asks, such as whether Sara-Jane has prescription medication for IK at her home;
f. Sara-Jane refuses to inform Wayne about intended travel with the children and instead allows the children to give their father the information;
g. Sara-Jane has made serious unilateral decisions for the children, such as not sending IK to school during her parenting time with IK and enrolling IK in Sylvan Learning Centre instead, without advising Wayne of her intention to do this and contrary to the terms of the temporary order which gives Wayne sole-decision making authority over IK and GK;
h. Sara-Jane has rarely accompanied IK to any medical appointments; and
i. Despite being told by Mr. Hurwitz that GK required therapy and Mr. Hurwitz providing names of three recommended therapists to the parents, Sara-Jane refused to consent to the therapy unless IK also went for therapy and both girls went to the same therapist at Behaviour Innovations, an ABA-therapy center for children with autism. This was so, even though GK does not have autism or special needs. As well, given IK’s special needs, the therapy that was recommended for GK was clearly intentionally recommended for her and not IK.
[179] Further, in cross-examination, Sara-Jane made the following admissions about her parenting:
a. She did not take any steps between January 2020 (when Dr. Hundert completed his assessment of IK’s needs) and the trial, to facilitate or organize the therapy or behavioural protocols recommended for IK;
b. She believed that she had custody of the children and was their primary caregiver, despite the existence of the October 2019 temporary order;
c. She could not recall the last time she had taken IK to a doctor’s appointment;
d. Between May 2018 and March 2020, she left her house every single weekday morning before both IK and GK woke up because she takes a martial arts class or other exercise classes at the two gyms to which she belongs, in the mornings;
e. She never drove IK to school unless Gina had a scheduled day off or was on holiday;
f. Prior to the separation, while she was at home full-time and Wayne was working, she had two full-time nannies in the house, from Monday to Friday, even though both children were in school during the day full-time;
g. GK was given milk in baby bottles in the last few years of marriage, although she denied that she had engaged in this practice and said it was the nannies who had;
h. GK wore nighttime diapers until she was 8 years of age;
i. Wayne had been asking her to consent to GK receiving therapy since November 2017 but she would not agree to that counselling;
j. She did agree to GK getting counselling through Behaviour Innovations with Dr. Hundert, although she recognized that Dr. Hundert specialized in therapy for children on the autism spectrum and GK was not on the spectrum. Still, she thought it was best that GK get counselling with him;
k. She believed that IK is the primary person who needs counselling, not GK;
l. She believed that IK has the capacity to function at a Grade 10 level;
m. The last time she had any contact with IK’s teacher or anyone at all at West Hill Collegiate was the Fall of 2019;
n. She did not attend the urgent meeting which West Hill had arranged in order to address IK’s behaviours and strategies for her, on September 27, 2019, given West Hill’s concern over IK’s distress, anxiety and self-harming behaviours when IK was in crisis;
o. She did not contact Wayne after the September 27th, 2019 meeting to find out what transpired at the meeting, at which 9 staff and board members had been present;
p. From September 13, 2019 to October 23, 2019, she believed, incorrectly, that IK had been sent home from West Hill and was unable to attend school;
q. She did not reach out to anyone at West Hill in September or October 2020, to see how IK was doing when at school; and
r. She acknowledged that it might have been helpful for IK’s teacher to know how IK was feeling about going to school in September 2020 and, to that end, that she could have sent her teacher an email. However, she had not.
Experts involved with Sara-Jane’s Mental Health
[180] Dr. Fitzgerald’s assessment of Sara-Jane’s mental health seem to accord with the experience of various third parties who have been involved with IK, including Gayle McIntosh, West Hill’s prior Vice-Principal and Jenny Brown, IK’s classroom teacher. Again, he found that Sara-Jane had difficulty processing information and understanding the perspective of others or how to manage herself in interpersonal situations. He opined that this can enter into the realm of parenting and can lead to difficulties in working with others in a cooperative and collaborative manner. Further, Dr. Fitzgerald found that Sara-Jane appears to have difficulty understanding how to represent herself successfully to others; difficulty communicating effectively and knowing how to present herself in an optimal manner; has thinking that can be disorganized and confused, perhaps when she is concerned about how she is perceived. The evidence at trial has demonstrated that Wayne will regularly share information about both children with Sara-Jane. Yet, when given pertinent information with the expectation of obtaining her input, Sara-Jane has not responded to it.
[181] Again, it was based in part, on Dr. Fitzgerald’s findings about Sara-Jane, Howard Hurwitz made the recommendation that Sara-Jane have a psychiatric assessment to determine if there are additional mental health conditions impacting her behaviour. He recommended that Dr. Peter Sutton or another psychiatrist approved by him conduct the assessment.
[182] Sara-Jane retained Dr. Mark Pearce to complete a psychiatric assessment of her. Again, while Dr. Pearce was not able to conclude that Sara-Jane suffers from a major mental illness, and he did not conclude that she suffers from a personality disorder, he did find her electronic communication skills to be “somewhat lacking and opined that “this shortcoming is likely attributable to her personality structure (though there is no personality disorder present) as well as [her] somewhat limited coping skills”.
[183] However, as outlined above in detail in paragraph [104], there were a number of important things Sara-Jane did not disclose to Dr. Pearce, including her prior prescription of Seroquel and a referral made by a doctor at Medcan that she attend the emergency department at CAMH. When these facts were put to Dr. Pearce, he testified that while he would have liked to have known these facts prior to completing his report and opining in it that Sara-Jane did not suffer from a mental health disorder. In any event, Dr. Pearce’s report raised issues in terms of Sara-Jane’s personality structure and traits, which confirm her difficult interaction and communication style, which will make co-parenting in this family difficult.
Experts involved with Wayne’s Alcohol Use
[184] It is noteworthy that in the three meetings Dr. Fitzgerald had with Sara-Jane, she did not once mention any concern she had about Wayne’s alcohol use.
[185] As between the two addiction doctors, Dr. Steinman and Dr. McMaster, I preferred the evidence of Dr. McMaster. Dr. Steinman’s process was flawed. Having relied on a photograph he received from Sara-Jane and not showing it to Wayne and/or having Wayne advise as to the circumstances of the photograph, Dr. Steinman’s methodology became compromised. Dr. Steinman had no notes to refer to during his evidence. He was defensive during cross-examination and he refused to answer any hypothetical questions. In sum, Dr. Steinman’s evidence did not appear to be balanced. Dr. McMaster’s evidence was clear. His process was thorough.
[186] Sara-Jane acknowledged that she had received a copy of Dr. McMaster’s assessment report, dated December 23, 2019, related to Wayne’s alcohol use. She admitted it is an 18-page report; it shows the results of blood tests administered over a period of time; Dr. McMaster is a psychiatrist at CAMH who had spoken with a number of collaterals, including the nannies, Sara-Jane’s sister, Howard Hurwitz, and Dr. McMaster had responded to concerns raised about Dr. Steinman’s report.
[187] When asked in cross-examination if she had read Dr. McMaster’s assessment report, Sara-Jane answered several times that she had not had an opportunity to review or discuss the year-old report with Mr. Riley, but she had read it.
[188] When asked in cross-examination whether she continues to insist that Wayne has Binge Alcohol Disorder, despite Dr. McMaster’s report, Sara-Jane responded, “Wayne has a problem with alcohol but he has a personality disorder detailing [sic] Dr. Steinman’s adjectives in behaviour”. When asked for an explanation, Sara-Jane explained that “Wayne has an alcohol disorder and a developing personality disorder”.
[189] It is noteworthy that, despite, Sara-Jane’s insistence that Wayne has Binge Alcohol Disorder, she repeatedly stated during the trial that. as long as Wayne is prepared to address his alcohol use disorder by getting therapy, then she was agreeable to a shared parenting schedule.
Howard Hurwitz’s Custody and Access Assessment
[190] Given that Dr. McMaster’s alcohol assessment was conducted after Mr. Hurwitz’s s.30 assessment was completed, counsel for Wayne put Dr. McMaster’s results to Mr. Hurwitz. In cross-examination, Mr. Hurwitz testified that, if he had known that:
a. Wayne had the exact bloodwork that Dr. Steinman had requisitioned, done again one month later and everything was negative; and
b. Wayne had engaged an addictions assessor who was an addiction specialist at CAMH and who, over a period of months, had Wayne complete a number of blood tests, all of which came back negative; and
c. the psychiatrist had opined that Wayne did not have an alcohol addiction,
then his recommendation that Wayne should enroll in an alcohol use program would no longer be necessary.
[191] While Sara-Jane did not agree with Howard Hurwitz’s custody and access assessment, it is noteworthy Sara-Jane did not challenge the assessment in terms of its reliability or its neutrality. More specifically, Sara-Jane did not challenge or criticize Mr. Hurwitz’s assessment in terms of whether he had followed the Ontario College of Social Workers’ Practice Guidelines for Custody and Access Assessments. Mr. Hurwitz’s process was not challenged, nor were the objective testing or evaluative measures that Mr. Hurwitz had put in place. Further, no ethical concerns regarding Mr. Hurwitz’s assessment were raised. In fact, the only issue raised had Sara-Jane raised was why Mr. Hurwitz conducted his two home-observation visits in her house after school and before dinner each time. Mr. Hurwitz testified that he conducts the home observation visits at the same time in both parent’s homes so neither parent can claim that he/she was disadvantaged. Accordingly, keeping the time the same for each home observation visit reduced the number of variables.
Experts involved with IK
[192] Sara-Jane was clear that she does not believe that IK’s best interests and needs are being met by her school, West Hill. Most of Sara-Jane’s stated concerns about West Hill were not rooted in fact. It was Gayle McIntosh’s evidence that:
a. West Hill has a special program for developmentally delayed and disabled students with two classrooms;
b. There are 7 students, one teacher and two educational assistants in each of the classrooms;
c. Each teacher has special educational training and is qualified with all three levels of special educational training;
d. The program has literacy and numeracy components, as well as a skills development and adaptation component;
e. The teachers use a Smart Board and the children have iPads;
f. The teachers utilize and apply many ABA techniques;
g. A safety plan is in place for IK, which includes a quiet, sensitive room, with low lights, gymnasium mats, and with protective equipment if needed when IK acts out, and
h. West Hill’s experience with Sara-Jane is that she is adversarial; reluctant to come to any school meetings without a lawyer present; reluctant to sign paperwork that would be assistive to IK and she uses abusive language;
[193] Again, Ms. McIntosh was the Vice-Principal at West Hill between 2014 and 2020.
[194] Despite Sara-Jane’s stated position that IK can reach the potential of a Grade 10 level, none of the witnesses who testified agreed. Dr. Hundert, the psychologist Sara-Jane has engaged; Ms. Mcintosh, the vice-principal at West Hill; Jenny Brown, IK’s classroom teacher and Wayne, all testified that IK reads at a grade 2-3 level and that she has reached her potential academically.
[195] In terms of IK’s schooling, Sara-Jane presented no plan for IK, other than the fact that she wants IK in an ABA program, to “get her back on track” so that she can meet her potential, which Sara-Jane believes is reaching a grade 10 education. During her examination-in-chief, Sara-Jane deposed that the ABA school would cost approximately $9,000 a month and that within 6-12 months, she believes the cost would be reduced and IK would join a community social group. However, Sara-Jane did not propose any details regarding the community IK would be able to join.
[196] Again, Sara-Jane requested that Dr. Hundert complete a behavioural assessment of IK and develop behavioural management protocols for IK in all settings. Dr. Hundert completed that assessment in January 2020. Despite these recommendations and despite the fact that it was Sara-Jane who had chosen Dr. Hundert to complete the assessment, Sara-Jane admitted in cross-examination that she did not follow up with Dr. Hundert after he delivered the assessment report. She admitted that, when Dr. Hundert sent her a follow up email on February 3, 2020, indicating that he had not heard from her about the piloting of the procedures, she did not respond to it. Further, she admitted that she had received both a copy of Wayne’s response to Dr. Hundert, in which he indicated that he wished to go forward with the piloting procedures and therapy, even if Sara-Jane did not agree to, and Dr. Hundert’s response to Wayne, that he required her consent in order to proceed with the piloting of procedures. The explanation she gave for no responding to this issue is that she did not respond because she did not have the money to pay for the therapy.
[197] In other words, even though Dr. Hundert was prepared to work with both parents, to implement the piloting of procedures in both homes and even though Dr. Hundert was prepared to commence therapy with IK in February 2020, and she knew that Wayne had confirmed his consent to the plan, Sara-Jane failed to respond, knowing that the piloting of procedures would not occur and IK would lose the opportunity for the recommended therapy.
Decision-Making Model and Residency Schedule
[198] Having considered the evidence before me as a whole, I believe that IK’s and GK’s safety, security and well-being will be best met by Wayne having sole custody of the children. I do not believe that Sara-Jane is able to address IK’s or GK’s need for stability and predictability. Further, Sara-Jane has demonstrated an inability to communicate and cooperate not only with Wayne but also with the professionals involved with both IK and GK. Furthermore, it is evident from Sara-Jane’s conduct since the separation that she is not willing to support the development and maintenance of either child’s relationship with Wayne.
[199] On the other hand, I am satisfied that Wayne is capable of making decisions in each of IK’s and GK’s best interests, given that he appreciates that they have differing needs due to each child’s age and stage of development. The evidence satisfies me that Wayne approaches parenting in a child-focused manner. He had not had any difficulty, to my knowledge, dealing with the professionals involved in the children’s lives. I cannot at this time say the same thing in relation to Sara-Jane. I am not sure that Sara-Jane will ever be able to see and accept the role she has played in the conflict between her and Wayne or in the conflict between her and the third-party professionals involved in both IK’s and GK’s lives.
[200] In cross-examination, Sara-Jane agreed with the following statements – that is, that parents who have joint custody of children would: (a) be obliged to communicate clearly and promptly about any educational and health decisions; (b) have to consult with each other prior to making a decision; (c) need to have good communication skills, especially parents with joint custody of a child with special needs, such as IK; (d) need to be able to discuss things and consult with one another; (e) have to be good communicators with respect to IK’s teachers and health professionals; (f) have to make informed decisions about IK’s health and education and be able to obtain information from the health or education providers; and (g) have to be able to give these health or educational professionals information about IK.
[201] Despite these admissions, the evidence is abundantly clear that Sara-Jane does not have the necessary communication skills needed by a parent who has the responsibility of being a joint custodial parent. Sara-Jane has demonstrated that she is unable or unwilling to discuss child-related matters with Wayne and is unable or unwilling to communicate with the teachers and health professionals involved with either IK or GK. The evidence is clear that Sara-Jane makes unilateral decisions about the children based on what she alone thinks is right, without consultation with or seeking Wayne’s input, even during the time where Wayne had temporary sole custody of the children. Sara-Jane has also demonstrated that she is unable or unwilling to answer direct questions, whether asked them by her own counsel during the trial, by Mr. Hurwitz or by Wayne, about important issues such as IK’s medication. Clearly, this is a not a case where these parents can co-parent IK and GK effectively. It is not known why.
[202] It is imperative that Sara-Jane get the help she needs to be able to put her feelings of anger, resentment and bitterness toward Wayne aside and to gain insight into her communication issues and how she is perceived by others. What will assist IK and GK at this point is for one parent to be responsible for the major decisions that impact them as opposed to the parents engaging in further conflict about these decisions. It is also imperative that the parent who has decision-making authority have a realistic view of each child’s abilities and needs and for each child to get the therapeutic assistance she desperately needs. With respect to IK, consistency and predictability of expectations and routine is of paramount importance. Both parents are able to identify that IK does not do well with transitions and not knowing what to expect.
[203] Particularly in the circumstances of a case such as this one, in the absence of the capacity of both parents’ part to coparent, one parent has to have decision-making responsibility in relation to the children. My conclusion is based on the following considerations:
a. A co-parenting decision-making model, which requires a parent to first share information about IK and/or GK and then consult with the other parent, to try and reach an agreement about a major issue, will not work with these parents. Sara-Jane refuses to communicate with Wayne in a productive manner. The evidence shows that Wayne has tried repeatedly and unsuccessfully to engage Sara-Jane in productive conversations about both IK’s and GK’s needs and treatment. Rather than focus on and respond to any concerns raised by Wayne and professionals involved with the family, Sara-Jane seized on the one significant concern that had been raised by Dr. Steinman about Wayne’s use of alcohol and was unable to let go of it. Even if Dr. Steinman’s opinion had not been successfully challenged, Sara-Jane did not have the ability to put it in its proper perspective – that it was only one area of concern among several – the balance of the concerns relating to Sara-Jane’s ability to co-parent. Every contact she has with Wayne includes her alleging that he has “Binge Alcohol Disorder” and she fails to answer any of the pertinent questions he has about either child. The fact is that, she cannot co-parent, if she will not or cannot address issues candidly. Sara-Jane’s disorganized manner of communication and unwillingness or inability to answer questions directly, makes it impossible for Wayne to rely on her to relay and/or share information about either IK and GK with others and requires that Wayne have repeated contact with Sara-Jane, just to beg for an answer to a question, whether it be about one of IK’s prescriptions, about details of an upcoming trip Sara-Jane has planned with the children or whether se consents to a proposed course of action;
b. Sara-Jane’s past conduct shows that she is aggressive and combative with third parties assisting IK, whether these third parties be school professionals or IK’s nanny, Gina. Sara-Jane is unable or unwilling to take any responsibility for her aggressive nature. Having no insight into how she acts or how others perceive her makes it impossible for Sara-Jane to make child-focused decisions for either IK or GK, which are in the child’s best interests. Sara-Jane’s conduct since the separation demonstrates to the court that she has been unable or unwilling to support the development and maintenance of the children relationships with Wayne, a key consideration in determining the children’s best interests; and
c. Sara-Jane currently does not appear to see her conduct and Wayne’s conduct in their proper perspectives. She requires individual therapy, to gain insight into how her need to dismiss and ultimately minimize or entirely eliminate Wayne from the children’s lives would be very damaging to both children, if that were to occur. There is no doubt that IK and GK love both of their parents and need both parents in their lives to reach their full potential as adults. Her responses to issues are not responsive to the issues but seem to be given to address issues that Sara-Jane has Sara-Jane, Despite having received a recommendation that GK receive therapy, Sara-Jane continues to insist that IK receive therapy before GK and that if GK needs therapy, GK receive it from the center that works with autistic children. Again, GK does not have autism.
[204] The evidence satisfies me that, despite all the positive aspects of IK’s and GK’s relationship with Sara-Jane and Sara-Jane’s love for both girls, Sara-Jane’s animosity toward Wayne and the third parties involved with the children has prevented her from agreeing that GK needs therapeutic support or that IK’s needs are being met at West Hill. Sara-Jane’s overall lack of action of responses to proposed plans of action as they relate to both girls shows an unwillingness or inability to place IK’s and GK’s needs above her own emotional needs.
[205] Wayne must have decision-making responsibility for the major education, health, religion and recreational activities for both IK and GK. At this point in time, one parent must be able to respond in a timely way to IK’s education- and health-related issues. Wayne has demonstrated far more consistent attempts to access appropriate educational and therapeutic resources for both IK and GK. He attempted to engage Sara-Jane and obtain her consent to such treatment and protocols despite the difficult history he has had with Sara-Jane. Yet, she did not give specific details supporting her allegations during her evidence. Sara-Jane refuses to answer Wayne’s inquiries or address his attempts to get IK and GK help. She continues to insist, for example, that she make the decision. If Sara-Jane had actually engaged services for IK of GK, to assist either child with her education or health needs, that would be different. Instead, she twists Wayne’s attempts into allegations that he engages too many professionals or unsuitable professionals for IK. All attempts made by Wayne to pilot the behaviour protocols recommend by Dr. Hundert or West Hill have been dismissed by Sara-Jane. Yet, she had proposed that Dr. Hundert assist them. Again, it is not possible to know definitively why Sara-Jane deflects questions; fails to communicate with Wayne and fails to cooperate with Wayne. It is possible that her actions arise out of a defensiveness on her part about her inability to care for the children without full-time nannies or cope with the challenges that IK’s condition cases. Whatever the reason(s) may be, Sara-Jane has not attended important appointments relating to IK in particular and made crucial decisions in the absence of input of the professionals involved with IK and without Wayne’s input. She was not able to satisfy me that it was necessary to do or that the choices made sense.
[206] It is necessary (and not just desirable or preferable) in IK’s and GK’s best interests, to order that Wayne have sole decision-making authority over all major decisions, which have to be made about IK and GK. If Sara-Jane cannot support decisions Wayne makes for IK: in particular, her attendance at West Hill, IK will no doubt continue to lash out against the expectation that she goes to school. No doubt, IK is aware that there are different expectations for her at her mother’s home than there are at her father’s home. This knowledge undoubtedly contributes to IK’s resistance behaviours. As a result, I find that it is in IK’s best interests that she resides with her father during the school week. Her schedule must be consistent and predictable. Not only will there by less changes during the school week for IK, but it will enable Wayne to implement the behaviour protocols that Dr. Hundert has suggested. In terms of GK, a schedule allows her to spend meaningful time with both parents and also allows GK to have some time with Sara-Jane without IK present, which means Sara-Jane will be able to tap into GK’s needs, without having to split her focus between IK and GK.
[207] Wayne prepared a draft, proposed Trial order which was attached to his Opening Trial Statement, dated November 11, 2020. While at the time of trial the DA has not yet been amended, and I might be disposed in a high-conflict case such as this one, to order sole custody to Wayne, Wayne seeks an order using the language proposed in the amendments to the DA, such that he have final decision-making authority for all child-related decisions. Wayne is prepared in the draft, proposed Trial order to consult with Sara-Jane, in writing, through Our Family Wizard, prior to making any final decisions about the children. However, given the history between the parties and Sara-Jane’s failure to respond to Wayne in a direct fashion, I have included a specific time period within which Sara-Jane must respond to the invitation for consultation in my order.
[208] In addition to the regular residency schedule proposed by Wayne, in his draft proposed Trial order, he included specific terms about how the children will share their holidays with the parents. Generally, in high-conflict cases, the more detailed the order is in terms of the parenting schedule that would be in place during the summer, Winter break, March Break and long weekends, is preferable to avoid any opportunities for further engagement between the parents. Wayne testified about the terms in his draft, proposed Trial order in his evidence. Wayne was not cross-examined on his proposed regular residency schedule or on his proposed holiday schedule. Nor did Sara-jane give any evidence about Wayne’s proposed residency schedule or his proposed holiday schedule. I can only reasonably conclude from this that Sara-Jane is not opposed to the holiday parenting schedule proposed by Wayne in his draft, proposed Trial order.
Conclusion and Order
[209] Accordingly, this Court orders as follows:
a. The Applicant, Sara-Jane White, and the Respondent, Wayne Kozun, who were married at London, Ontario, on July 2, 1994, be divorced and that the divorce take effect 31 days after the date of this order.
Regular Residency Schedule
b. IK shall have her primary residence with the Respondent, Wayne Kozun, and her secondary residence with the Applicant, Sara-Jane White, and GK shall reside with the parties pursuant to an equal time-sharing schedule, according to the following regular schedule:
i. Starting on Monday, January 9th, 2021, after school at 3:30 p.m., on a two-week rotation:
- During Week One,
a. both children shall reside with the Respondent, Wayne Kozun, from Monday, after school, at 3:30 p.m. to the Friday, after school, at 3:30 p.m., except that:
i. GK shall reside with the Applicant, Sara-Jane White, on Wednesday, from after school to Thursday morning, when GK will be dropped off at school and GK will return to the Respondent’s home after school on Thursday; and
b. both children shall reside with the Applicant, Sara-Jane White, from Friday, after school at 3:30 p.m. for the weekend. IK shall be returned to the Respondent’s home on Sunday, at 6:00 p.m.
- During Week Two,
a. GK shall reside with the Applicant, Sara-Jane White, from Monday, after school, at 3:30 p.m. to the following Friday, after school at 3:30 p.m., except that:
i. GK shall reside with the Respondent, Wayne Kozun, on Wednesday, from after school to Thursday morning, when GK will be dropped off at school and GK will return to the Applicant’s home after school on Thursday; and
b. Both children shall reside with Wayne from Friday, after school, at 3:30 p.m. for the weekend,
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday
Week One
Both children with Wayne
Both children with Wayne
IK with Wayne GK with Sara-Jane from after school overnight
Both children with Wayne
Both children with Sara-Jane, from after school
Both children with Sara-Jane
Both children with Sara-Jane but IK returns to Wayne’s house at 6:00 p.m.
Week two
IK with Wayne GK with Sara-Jane
IK with Wayne GK with Sara-Jane
IK with Wayne GK with Wayne from after school overnight
IK with Wayne GK with Sara-Jane
Both children with Wayne, from after school
Both children with Wayne
Both children with Wayne
c. On the weekends that the children are in the Applicant’s care under 208(i.)(1.)(a. and b.) above (in Week One), the weekends shall end at 9:00 p.m. on Sundays for IK, when the Applicant shall return IK to the Respondent’s home.
d. In addition to the time set out in (b.) (i)(1. and 2.) above for:
i. In Week One, the Applicant may choose one consistent weekday per week, from Monday to Thursday (either with GK or separately from GK, either concurrently with the activity in (ii) below or on a different day) when IK will spend time with the Applicant at the Applicant’s home or elsewhere, from after school until 9:00 p.m. The Applicant shall be responsible for picking up IK from the Respondent’s home after IK returns home from school and dropping her off at the Respondent’s home at 9:00 p.m.
ii. In Week Two, in addition to (b.)(i)(2.) above, the Applicant has the option of accompanying IK to a pre-planned, weekly extracurricular activity (or a therapy session) one day per week (Monday to Thursday only) for up to two hours, in the hours between the end of the school day and 7:00 p.m. The Applicant shall advise the Respondent by 10:00 a.m. on Monday of Week Two, of the day and the activity planned for that day. The Applicant shall be responsible for picking IK up and after IK returns home from school and dropping off IK at the Respondent’s home. following such extracurricular activity/therapy session. During Covid, if there is no pre-planned weekly extra-curricular activity (or therapy session) in which IK is participating, then this subparagraph shall not apply.
iii. If the Applicant does not provide notice to the Respondent of the weekday she has chosen under (d.)(i.) above within 14 days from the date of this Order, then the Respondent shall choose it within the following 7 days.
iv. If the Applicant does not provide the Respondent with the information referred to in (d.)(ii.) above by 10:00 a.m. on Monday, the Applicant will be deemed to have decided that she will not spend time with IK on that day.
Decision-Making Responsibility
e. The Respondent, Wayne Kozun, shall have final decision-making authority for all significant decisions relating to IK’s and GK’s education, health, recreation and religion (including therapy for IK and/or GK). Prior to making any final decision, the Respondent shall consult with the Applicant, Sarah White, in writing, via Our Family Wizard and seek her input. The Applicant, Sara-Jane, shall respond to the Respondent’s invitation for consultation, within 72 hours for non-urgent decisions, in writing, via Our Family Wizard. If the Applicant, Sara-Jane, does not respond to the Respondent’s, Wayne Kozun’s, request for consultation for a significant decision for either or both children within the time prescribed, 72 hours, and in the event of a disagreement as to a major decision, the Respondent, Wayne Kozun, shall have final decision-making authority.
f. Day-to-day decisions shall be the responsibility of the parent in whose care IK and GK are residing at the time. The parents shall engage in reasonable efforts to achieve consistency in behaviour management and day-to-day routines, in order to provide continuity of care, consistency and predictability for IK and GK.
Children’s Documentation
g. The Respondent, Wayne Kozun, shall hold the originals of IK and GK’s OHIP Health Cards and provide a copy to the Applicant, when necessary. The Respondent, Wayne Kozun, shall hold the children’s passports and provide the originals to the Applicant, Sara-Jane, when necessary for travel. The Applicant, Sara-Jane, shall return the passport(s) to the Respondent, Wayne Kozun, upon conclusion of the travel.
Scheduling of Recreational Activities
h. Neither parent shall schedule or expect IK and GK to attend a recreational activity during the other parent’s parenting time, without consent of the other parent, in writing, or order of the court.
Counselling
i. GK shall participate in closed counselling with a therapist experienced in working with children and families going through separation/divorce. The Respondent, Wayne Kozun, shall arrange for such counselling, without the Applicant, Sara-Jane, to consent. For clarity, the Respondent, Wayne Kozun, shall advise the Applicant, Sara-Jane, of the details relating to GK’s counselling (i.e. the name of the therapist; how often she attends, etc.). The Respondent and the Applicant shall each participate in such counselling, particularly if the therapist requests his/her involvement in it from time to time. Each party is entitled to seek and receive information from the therapist, to the extent that disclosure of information is permitted by the therapist. The Respondent, Wayne Kozun, shall pay the cost of such counselling.
j. Both parents shall participate in the Behaviour Innovations Agency (or another agency selected by the Respondent, Wayne Kouzn, following consultation with the Applicant, Sara-Jane, as set out in (e.) above) to address behavioral management issues and/or therapy for IK. Both parties shall sign any consent required to be signed by Behaviour Innovations and shall work together with IK’s school to ensure continuity and consistency. Both parents shall sign consents, enabling both the school and Behaviour Innovations Agency (or another agreeable agency) to communicate with one another. The Respondent, Wayne Kozun, shall pay the cost of such consultation or therapy to address IK’s behavioural management.
Scheduling of Children’s Appointments
k. The parents shall refrain from any form of interference, direct or indirect, open or subtle, in the life, activities, or routines of the other parent. In this regard, neither parent shall schedule medical or dental appointments or any other appointments or activities for IK and GK, which requires the involvement of the other parent during periods in which the children are in the care of the other parent, without prior consultation with and receipt of consent from the other parent, such consent not to be unreasonably withheld.
Communication between Parents
l. The parties shall only utilize “Our Family Wizard” for communication regarding the children. Both parties shall maintain the expense for his/her own subscription to “Our Family Wizard”.
m. The only permissible forms of communication between the parents shall be “Our Family Wizard”, or in case of urgency, either text, email, or telephone calls (telephone only in emergency situations). “Urgency” includes emergencies or unanticipated circumstances affecting the time of a residential change due to lateness/traffic, illness, etc.
Holiday Schedule
n. Commencing the summer of 2021 and ongoing, the children shall spend a week of holiday time with each parent in each of July and August. In the event that either parent wants to combine their single weeks to take either or both children on a vacation for two weeks, notice shall be given of such intention in accordance with subparagraph n. below.
o. Arrangements for summer vacation periods shall be made no later than April 1st of each year. The Respondent, Wayne Kozun, shall have first choice of these weeks in even numbered years and the Applicant, Sara-Jane, shall have first choice of these weeks in odd numbered years, starting with the Summer of 2021. In the event that either party, when that party has first choice of vacation time, does not give written notice on “Our Family Wizard” of his or her chosen weeks by April 1st , the other parent may then choose his or her vacation weeks on or after April 2nd, provided that the other parent (with first choice) has not yet chosen his or her weeks.
p. Either party may propose summer camps for the children, which proposals will be made on “Our Family Wizard”. All proposals for summer camps shall be answered within 72 hours. If the parties cannot agree on summer camps for the children, the Respondent, Wayne Kozun, shall have the final decision-making authority for such camps in accordance with subparagraph e. above. The Respondent’s final decision-making authority for summer camps does not include enrolling the children in any camps during the Applicant’s two weeks of vacation time with the children as set out above.
q. IK and GK shall spend Thanksgiving Monday with the parent in whose care they are not in for the previous weekend. Thanksgiving Monday will commence on Monday morning at 10:00 a.m. and will run through to Monday evening at 9:00 p.m.
r. IK and GK shall spend equal time with both parents over the Christmas school holiday. Specifically:
i. IK and GK shall reside in alternate years in the care of one parent from after school on the day that the Christmas School Vacation period begins (normally a Friday) until December 25th at 1:00 p.m., and with the other parent from December 25th at 1:00 p.m. for eight (8) consecutive nights ending at 5:00 p.m. the following day (January 2nd), and with the former parent for the balance of the Christmas school vacation period, if any, ending on Sunday at 7:00 p, m, The regular schedule would then resume.
ii. The Respondent, Wayne Kozun, shall have IK and GK in his care in even numbered years for the first and third portions of the holiday and the Applicant, Sara-Jane, shall have IK and GK the second portion (8 days) in even numbered years. In odd numbered years, this will reverse;
iii. Regardless of the schedule, the Respondent, Wayne Kozun, shall take GK to his family Christmas party, and the Respondent, Wayne Kozun, shall provide advance notice to the Applicant, Sara-Jane, in writing, of the date and time of this party. In the event that IK does not wish to attend this party, the Respondent, Wayne Kozun, shall offer to the Applicant, Sara-Jane, the opportunity to care for IK prior to arranging for third party care.
s. For other Long Weekends (Monday Statutory Holidays), IK and GK shall reside with the parent that has them that weekend as per the regular schedule. For the Applicant’s long weekends with a statutory holiday on the Monday, these weekends shall extend to drop off at the Respondent’s home on Monday evening at 9:00 p.m.
t. For March Break, the children shall reside with each parent for this week in alternate years. The children shall reside with the Respondent, Wayne Kozun, for March Break in odd numbered years starting in 2021, and the children shall reside with the Applicant, Sara-Jane, for March Break in even numbered years starting in 2022. If one parent wants to take IK and/or GK away for a one-week period during this holiday, he/she shall give notice of such a trip by January 15th prior to the March Break. Consent to such a trip shall not be unreasonably withheld by the non-travelling parent. The additional time taken by the travelling parent will be provided by that parent to the non-travelling parent during the following year’s Winter Break (regardless of whether that parent decides to travel in the following year or not). In other words, both parents shall have the same opportunity to travel with the children for a one-week prior. March Break ends with drop off on Sunday evening prior to the start of school at 9:00 p.m.
u. The children shall spend Mother’s Day with the Applicant, Sara-Jane, and Father’s Day with the Respondent, Wayne Kozun, from 10:00 a.m. to 9:00 p.m., regardless of which parent they are residing with that weekend.
v. For Easter weekend, IK and GK shall reside in alternate years with each parent during the long Easter weekend from Thursday after school or 4:00 p.m. if they are not in attendance at school until Saturday evening at 7:30 p.m. and, in alternate years, from Saturday evening at 7:30 p.m. until Monday evening at 9:00 p.m. The Respondent, Wayne Kozun, will have IK and GK on the Thursday-Saturday period in even numbered years and the Applicant, Sara-Jane, to have the Thursday-Saturday period in odd numbered years.
Right of First Refusal
w. If either party is unable to care for either or both children for more than a 24-hour period during his/her parenting time, the party unable to care for either or both children shall offer the other parent, on “Our Family Wizard”, a right of first refusal to care for the child(ren) before arranging for third party care. This includes any travel for either party (work or personal), any travel by either party with only one child (the right of first refusal will be offered for the non-travelling child), or any other reason (such as illness, etc.) rendering the residential parent unable to care for the child(ren) for more than a 24 hour period.
Travel with Children
x. The children shall be permitted to travel outside Canada with either parent for the purposes of vacation, contact with extended family, or special occasions, with the consent of the other parent, such consent not to be unreasonably withheld. In instances in which IK and GK travel outside of the country with a parent for these purposes, the travelling parent shall provide the non-travelling parent with a travel letter authorizing IK and GK to travel outside the country with the travelling parent. Included in the travel consent shall be a full itinerary, including details of travel arrangements, an address and telephone number where IK and GK and the travelling parent may be reached.
y. Each parent shall be obligated to request the consent to travel from the other parent with a minimum three weeks’ notice in any instance in which that parent wishes to travel with IK and GK and the travelling parent will provide the non-travelling parent with a travel consent, with a detailed itinerary at least two weeks in advance of travel for signature. The non-travelling parent shall provide the travelling parent with the signed travel consent with a minimum seven days in advance of the scheduled trip. In instances in which IK and/or GK are travelling outside the country with the Applicant, the Respondent shall provide the Applicant with IK and/or GK’s passports at the same time that he provides the notarized “Travel Letter”. The Applicant shall return the children’s passports to the Respondent simultaneous with IK’s and GK’s return from such an out of country vacation.
The Kozun Family Trust
z. Wayne’s requests for orders relating to the Kozun Family Trust are dismissed, “without prejudice” to either party’s right to proceed by way of Application with the claims referred to in paragraph 8 of the Partial Minutes of Settlement, dated November 9, 2020, that either party may start in the future.
Costs
aa. If a party seeks costs of the trial, and the parties cannot resolve the costs issue on consent, including costs related to the issues of retroactive and prospective child and spousal support settled mid-trial, then a party seeking costs shall serve and file written submissions that are no longer three pages (plus a bill of costs and copies of any dockets or disbursements) and any relevant offers to settle by January 29, 2021, and the other party shall serve and file any written responding submissions (in similar form as the submission seeking costs) and a copy of any relevant Offer to Settle, filed within five days of receipt of a party’s submission for costs. Reply submissions, if any, shall be no more than 2 pages and served and filed within 3 days of receipt of responding submissions.
M. Kraft, J.
Released: January 4, 2021
COURT FILE NO.: FS-18-001901
DATE: 20210104
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sara-Jane White
Applicant
– and –
Wayne Kozun
Respondent
REASONS FOR JUDGMENT
M. Kraft, J.
Released: January 4, 2021