COURT FILE NO.: D14723/15

DATE: 2021/08/04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Sharon Anne Misiuda

Applicant

– and –

John William Misiuda

Respondent

Deborah Ditchfield, for the Applicant

Howard Staats, for the Respondent

HEARD: May 10, 11, 12, 13, 14, 2021; May 18, 19, 20, 21, 2021; June 7, 8, 9, 2021.

REASONS FOR JUDGMENT

the honourable Justice R. F. MAcLeod

Introduction

[1] The Applicant, Sharon Anne Misiuda (“Sharon”) and the Respondent, John William Misiuda (“John”), were married July 21, 2001. They separated in March of 2015. Sharon commenced this application in June 2015.

[2] The parties have three children. Brenna was born October 24, 2004. Ainsley was born August 26, 2006. Kyla was born May 20, 2012. As of the date of trial, they were aged 16, 14 and 9 respectively.

[3] The issues before the court are:

a. a divorce;

b. parenting time and decision-making responsibility for the three children;

c. parenting coordination and reconciliation therapy for the family;

d. John’s contempt and sanctions for his contempt;

e. child support and section 7 arrears from the date of separation and ongoing;

f. equalization of net family property;

g. costs.

Background

[4] Sharon is a kindergarten teacher. John is a police officer with the Niagara Regional Police.

[5] From the date of separation in March 2015 through till May 31, 2015 the parties lived together in the matrimonial home.

[6] On May 31, 2015 John was charged with assaulting Sharon. He was required to leave the matrimonial home and began to reside temporarily with his parents.

[7] The order of Justice Gordon dated July 24, 2015 granted Sharon temporary custody of the three children.

[8] Brenna began living primarily with John in September 2015.

[9] The order of Justice Sweeny dated October 22, 2015 confirmed Brenna’s residence with John and set out his access to Ainsley and Kyla.

[10] Ainsley began living primarily with John in February 2018.

[11] John has been living with Dayna Schuyler (“Dayna”) since July of 2016. She was a neighbour and one of Sharon’s best friends during the marriage.

[12] After separation, Sharon dated Andy Schuyler, Dayna’s husband.

[13] At the beginning of trial, Sharon was cohabiting with Bryan Shields (“Bryan”). That relationship permanently ended just before closing arguments.

[14] The trial exhibits include police reports of 16 separate incidents, a CAAP assessment dated March 2, 2017, and an OCL report dated March 8, 2019.

Divorce

[15] John and Sharon each consent to a divorce.

Parenting Time and Decision-Making Responsibility

Sharon’s Position

[16] Sharon’s theory of the case is that the separation was caused by her discovery of John’s sexual relationship with Dayna Schuyler. At separation, Sharon would not agree to John’s demand for a 50-50 shared parenting schedule. She proposed a 60-40 schedule which better matched John’s work schedule. John was adamant that a 50-50 schedule was the only option. When he did not get his way, he promised to ruin her by weaponizing all three children against her. The last six years of family conflict and litigation have been the result of John fulfilling his promise.

[17] His mission included:

a. indoctrinating the children with the notion that Sharon is to blame for the marriage breakup (while denying any responsibility on his part);

b. indoctrinating the children with the notion that Sharon prioritized her relationship with first Andy Schuyler and then Bryan Shields over her relationship with the girls;

c. indoctrinating the children with the notion that only a 50-50 timesharing schedule was fair and anything less would be hurtful to them;

d. involving the Brantford Police Service at every possible opportunity, including persistent efforts to have Sharon charged criminally with assault, efforts to have Bryan Shields charged with forcible confinement, and efforts to have Bryan Shields charged with sexual assault of Kyla;

e. directly or indirectly engaging Brenna and/or Ainsley as evidence gatherers in support of John and against Sharon;

f. attributing all difficulties experienced by the children as a result of parental conflict to the children’s experiences with Sharon.

[18] John’s mission succeeded. Brenna and Ainsley now live primarily with their father. There is no fixed visitation or parenting schedule for Brenna and Ainsley.

[19] Given their ages, Sharon does not seek to force the girls to live with her. She seeks an order providing a schedule for equal parenting time but allowing that the schedule be subject to the wishes of Brenna and Ainsley. She also seeks significant reintegration therapy and counselling orders.

[20] Regarding Kyla, Sharon seeks, inter alia, an order that Kyla spend 10 nights of 14 with her and 4 nights of 14 with John.

[21] Sharon seeks sole decision-making responsibility for all the children with specific terms regarding the level and manner of consultation with John that is required.

[22] Sharon asserts that this unique form of order is warranted given the extensive campaign waged against her by John. This is the only way to both undo the damage already done by John and to prevent similar damage in the future, particularly with respect to Sharon’s relationship with Kyla.

John’s Position

[23] John denies the primary allegations raised by Sharon.

[24] John denies a sexual relationship with Dayna prior to separation.

[25] He asserts he has always encouraged the children to have an open and meaningful relationship with Sharon. He states that a 50-50 parenting schedule has always been his goal and that he has done nothing to undermine Sharon’s relationship with the children.

[26] John asserts that Brenna and Ainsley each independently decided not to live with their mother because of the behaviour of Sharon and/or her boyfriends Andy Schuyler and Bryan Shields.

[27] John seeks an order that all three children reside with him. He asks that Brenna and Ainsley visit their mother in accordance with their wishes. He asks that Kyla be with her mother on alternate weekends and each Wednesday overnight.

The Law

Credibility

[28] In R. v. White, [1947] S.C.R. 268 (S.C.C.), at p. 272, the Supreme Court of Canada discussed the inexact science of weighing a witness' credibility:

It is a matter in which so many human characteristics, both the strong and the weak, must be taken into consideration. The general integrity and intelligence of the witness, his power to observe, his capacity to remember and his accuracy in statement are important. It is also important to determine whether he is honestly endeavouring to tell the truth, whether he is sincere and frank or whether he is biased, reticent and evasive.

[29] In Christakos v. De Caires, 2016 CarswellOnt 1433 (Ont. S.C.J.), at para. 10, Justice P. W. Nicholson summarized some aspects of the credibility assessment as set out in Novak Estate, Re, (2008), 269 N.S.R. (2d) 84 (N.S. S.C.), at paras. 36-37:

There are many tools for assessing credibility:

a) The ability to consider inconsistencies and weaknesses in the witness' evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness' testimony and the testimony of other witnesses.

b) The ability to review independent evidence that confirms or contradicts the witness' testimony.

c) The ability to assess whether the witness' testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CarswellBC 133, it is "in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions", but in doing so I am required not to rely on false or frail assumptions about human behaviour.

d) It is possible to rely upon the demeanour of the witness, including their sincerity and use of language, but it should be done with caution (R. v. Mah [at paras.] 70-75).

e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. R. v. J.H., [2005] O.J. No.39 (OCA) [at paras.] 51-56). There is no principle of law that requires a trier of fact to believe or disbelieve a witness' testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness' evidence, and may attach different weight to different parts of a witness' evidence. (See R. v. D.R., [1996] 2 S.C.R. 291 at [para.] 93 and R. v. J.H. supra). [Emphasis omitted.]

Divorce Act: Best interests of child

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

Primary consideration

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

Factors to be considered

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

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

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

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

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

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

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

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

Factors relating to family violence

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

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

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

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

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

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

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

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

(h) any other relevant factor.

Past conduct

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

Parenting time consistent with best interests of child

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

Parenting order and contact order

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

Parenting order

16.1 (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by

(a) either or both spouses; or

(b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.

Interim order

(2) The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection.

Application by person other than spouse

(3) A person described in paragraph (1)(b) may make an application under subsection (1) or (2) only with leave of the court.

Contents of parenting order

(4) The court may, in the order,

(a) allocate parenting time in accordance with section 16.2;

(b) allocate decision-making responsibility in accordance with section 16.3;

(c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and

(d) provide for any other matter that the court considers appropriate.

Terms and conditions

(5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.

Family dispute resolution process

(6) Subject to provincial law, the order may direct the parties to attend a family dispute resolution process.

Relocation

(7) The order may authorize or prohibit the relocation of the child.

Supervision

(8) The order may require that parenting time or the transfer of the child from one person to another be supervised.

Prohibition on removal of child

(9) The order may prohibit the removal of a child from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.

Parenting time — schedule

16.2 (1) Parenting time may be allocated by way of a schedule.

Day-to-day decisions

(2) Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(a) has exclusive authority to make, during that time, day-to-day decisions affecting the child.

Allocation of decision-making responsibility

16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.

Entitlement to information

16.4 Unless the court orders otherwise, any person to whom parenting time or decision-making responsibility has been allocated is entitled to request from another person to whom parenting time or decision-making responsibility has been allocated information about the child’s well-being, including in respect of their health and education, or from any other person who is likely to have such information, and to be given such information by those persons subject to any applicable laws.

Parenting plan

16.6 (1) The court shall include in a parenting order or a contact order, as the case may be, any parenting plan submitted by the parties unless, in the opinion of the court, it is not in the best interests of the child to do so, in which case the court may make any modifications to the plan that it considers appropriate and include it in the order.

Definition of parenting plan

(2) In subsection (1), parenting plan means a document or part of a document that contains the elements relating to parenting time, decision-making responsibility or contact to which the parties agree.

Credibility Findings

[30] Sharon was a credible witness. She gave her testimony in a forthright manner. She readily acknowledged facts that were not in her favour. She did not evade or equivocate under cross-examination. Her evidence was consistent with the many police reports filed as exhibits as well as the CAAP report and the OCL report.

[31] John’s testimony was lacking in credibility. In general, John was far less direct and forthright than was Sharon. Particularly when addressing the ugly behaviours exhibited in the early years of the separation, behaviours that were clearly outlined in many third-party records. Instead of simply acknowledging what was plain to see John would repeatedly evade or minimize in his responses. “We both made mistakes” or “that was back in 2015” were frequent responses.

[32] Two specific examples highlight the concerns with John’s credibility:

(i) John’s affair with Dayna Schuyler

[33] Dayna and Andy Schuyler were friends and neighbours of John and Dayna. In late February 2015, John and Dayna were found by Dayna’s husband parked in a car a few minutes from their respective homes. John’s penis was exposed.

[34] John was recorded by Sharon in April of 2015. John said to Sharon:

“I was sleeping with Dayna for a long time. There’s your fucking truth. You want someone to be there to watch my kids, she will be.”

“I fucked her every God damn chance I got for three months…”

“You told me to go find someone else to fuck. So, I did and then you’re complaining about it.”

[35] John’s explanation for these admissions was that Sharon would not believe that he was innocent so he admitted to the affair, which he maintains never happened, hoping that she would get over it and consider reconciliation.

[36] On March 30 of 2015, Dayna met Sharon at a Wimpy’s restaurant. Sharon’s evidence was that Dayna acknowledged to her in this meeting that she was having an affair with John. In her evidence in-chief, Dayna said that she told Sharon she was having an affair but not with John. She was having an affair with an unnamed third-party. In cross-examination, Dayna was confronted with the audio recording that Sharon had made of that meeting. She was forced to acknowledge that she had, in fact, told Sharon that she had sexual relations with John. She had acknowledged they had sex on one occasion (in February of 2015 in the car.) Dayna’s suddenly recalled fresh explanation for this admission was that it was all a fabrication. John had asked her to admit to one sexual encounter, even though it was not true, because if Sharon believed it had only occurred once then she would reconcile.

[37] In John’s evidence, at no point did he acknowledge that he and Dayna had sex in the car in February 2015. Nor did he corroborate Dayna’s suddenly remembered plan to cop to a single sexual episode, which did not happen, in order to save John and Sharon’s relationship. If that had truly been their plan, John would surely have mentioned it in-chief or under cross.

[38] In May 2015, John travelled to the Dominican Republic for a vacation. He told Sharon that he was going with a colleague. Months later, Sharon learned that John was only accompanied by Dayna on this vacation, not a colleague. Pictures on social media from that week show John and Dayna in an intimate pose, with her hand caressing his neck. John and Dayna acknowledged sharing a room during this vacation. John and Dayna both deny having any physical or sexual relations during this weeklong holiday. John’s evidence was that his relationship with Dayna was limited to an emotional affair until August 20, 2015. That was the day that John took the three children, along with Dayna’s three children, to her lunch break to officially ask her to be his girlfriend.

[39] Whether or not and John had a sexual relationship with Dayna Schuyler prior to separation is essentially irrelevant to the issues before the court, but it is a key part of the narrative that John created for himself and for the children immediately upon separation.

[40] John carefully constructed a scenario whereby he was innocent in the eyes of the children for the separation. Sharon is the parent who chose boyfriends over the children. Sharon is the parent who chose to end the relationship. This is what the children, particularly the eldest two, believe. This is what they have repeated to Sharon. If there was any admission of John’s affair leading to the separation, it would risk crumbling the entire narrative in the eyes of the children.

[41] John’s explanations with respect to his sexual relations with Dayna is not credible. This story is not “in harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”

(ii) 1971 Chevelle

[42] During the marriage, John travelled to Mississippi to purchase a classic car, a 1971 Chevelle from a private vendor. The value of that vehicle is an issue in this trial.

[43] Under cross-examination, John acknowledged that he lied to Canada Customs on his return to Canada with the car. He falsified the purchase price on his declarations. His explanation was that he did not realize the ramifications of such actions at that time. He stated that it was the seller’s idea to give him a receipt for less than he paid “so you can save money in Ontario.” Therefore, according to John, he thought he might be in more trouble at the border by claiming the true value of the car that did not match the receipt.

[44] When asked why he did not simply get a proper receipt from the vendor John stated that the vendor refused. He stated that the vendor was pleased to get so much for the car and that he would not provide an accurate receipt.

[45] Upon further pressing, he maintained that he did not know it was wrong to lie on a declaration to Canada Customs.

[46] John’s evidence that a police officer was forced to accept an inaccurate receipt at the insistence of a Mississippi resident, with no skin in the game, and therefore forced to make a false declaration to Canada Customs, without knowing it was wrong to lie on a declaration to Canada Customs, is so incredible as to bring the entirety of his evidence into question.

[47] I find that where John’s evidence conflicts with Sharon’s evidence, Sharon’s evidence is to be preferred.

Key Events

[48] In April 2015, after John’s affair was discovered by Sharon, the parties were living separate and apart but still in the matrimonial home. One evening during this time, Sharon recorded a conversation with John that took place after the children were in bed. Although “conversation” is not the correct term for this interaction.

[49] The recording is 39 minutes long. For the most part Sharon is quiet. John is heard, in varying levels of anxiety and desperation, outlining for Sharon why she must resolve the parenting issues between them on a 50-50 basis. When his attempts to persuade seem to be failing, he resorts to threats.

“You want to talk about talking bad to the kids and trying to turn them against the other parent. Yeah. Fucking damn right. I’m going to do it between now and the fuckin’ time they get married. You’re damn right I will. And I’m gonna remind them every day your fucking mother ruined our relationship because she would not give you to me half time…”

“When your kids fuckin’ hate you five years from now you will fucking care, I guarantee you… Because every day that I see them I’m gonna remind them how the fuck we got here. That’s how…”

[50] In hindsight, this was not a threat. This was John laying out the blueprint of his path to victory. Six years later, his plan has been executed. No one is victorious, certainly not the children.

[51] The following is a chronology of key events that have transpired in the six years since John outlined his blueprint to Sharon.

[52] May 30, 2015: John confronted Sharon in the parking lot of Walmart. They were each in their vehicle, window to window. Sharon alleged that John spit at her through the window twice. John was subsequently arrested and charged with assault. He was required to live with his parents, ending the cohabitation in the matrimonial home.

[53] June 12, 2015: John complained to the Brantford Police Service seeking to have Sharon charged with assault with respect to an incident that occurred on May 19, 2015. The police officer who visited John to investigate said in his report:

“I also advised John that I felt there was not enough reasonable grounds to believe that an assault had been committed due to the time period, the conflicting stories that he was providing as he spoke to [the other officer] and I, and possible intention of retaliation by John as he had just been charged for spitting and Sharon’s face on May 30, 2015. I advised John that he had had three separate dealings with the police prior to police attending his residence on today’s date. I advised him that upon reviewing all the reports that he had not mentioned anything about an alleged assault on May 19, 2015.”

[54] September 6, 2015: John leaves a voicemail on Sharon’s phone for Brenna. He says, “I don’t understand why you kids can’t spend the night with your mother other than the fact that she wants to spend the fuckin’ night with her boyfriend if you ask me, which is bullshit.” “You’ll understand that when you see me. Dayna and I will have a discussion with you. Your mom is working so hard to get rid of you.”

[55] September 6, 2015: John leaves a second voicemail on Sharon’s phone for the girls. The voicemail makes a reference to “Andy the rapist”. Dayna Schuyler had made allegations that her husband had sexually assaulted her. Sharon gave evidence that Brenna learned from her father that Andy had raped Dayna. Ainsley told Sharon that Andy was a bad man and that she should not be dating him.

[56] September 14, 2015: Brenna took Sharon’s phone, accessed her pictures, and sent pictures of Sharon and Andy to John. Brenna told Sharon, “Daddy told me how to figure out your password.” Brenna would not give Sharon her phone back and a struggle ensued. Ultimately Sharon was charged with assault on October 9, 2015. A review of the police records indicate that John called the police at least eight times after this incident and insisted that Sharon not only be charged but that she be arrested and detained. Throughout this time, John insisted that he was seeking the charge at the request of Brenna. John also caused the police to launch a formal investigation into another officer who had not acceded to John’s demand to arrest Sharon. The charges were eventually withdrawn. When the charges were going to be dropped, John physically took Brenna to the Crown Attorney’s office so that Brenna could receive a full explanation of why the charges were being dropped against her mother. Brenna moved in with John full-time when Sharon was charged.

[57] September 25, 2015: Ainsley left a voicemail on Sharon’s phone while she was in the car with John stating, “I’m wondering whose big shoes are at the front door and if Andy was there. Was Andy in yours and daddy’s bed because if you are, daddy doesn’t like that.”

[58] October 6, 2015: John leaves a voicemail on Sharon’s phone for Ainsley saying, “This is her doing. She clearly has liked Andy for longer than a few weeks, probably a year. This is her doing. I would just like you to know that I was in that house for 2 and a half months trying to make amends. She gave up on me. Don’t listen to the crap.”

[59] November 18, 2017: John contacted Brantford Police Services because Brenna had texted photos to him alleging that Sharon had struck Kyla. The investigation determined that there were no injuries.

[60] February 12, 2018: John contacted Brantford Police Services and reported that Brenna had been assaulted by her “mother’s soon-to-be ex-boyfriend”. The police determined that the story was false.

[61] February 2018: Ainsley was at Sharon’s home alone while Sharon was at work. Bryan Shields had been home with Ainsley but left for the casino. John attended Sharon’s home to pick up Ainsley because Ainsley was not feeling well. Bryan Shields returned home before Ainsley left with John and Bryan insisted on calling Sharon before letting Ainsley leave with John. John called the police. The police initially advised Bryan that he would be charged with forcible confinement. With further investigation the police determined that no charges were warranted. Ainsley moved in with her father full-time after this incident.

[62] February 2018: Only a few days after the above incidents, Dayna attended at Sharon’s home again while Sharon was at work. She dropped off Brenna, Ainsley and one of Dayna’s children without notice to Sharon or to Bryan. The children entered the home despite Bryan’s objection. Dayna left and parked down the block. The purpose was to gather Ainsley’s clothing. John had been cautioned by Brantford Family and Children’s Services not to do that. He did not communicate that advice to Dayna.

[63] April 7, 2018: John was going away on vacation. He asked Sharon if he could keep Kyla for some extra time prior to leaving. Sharon agreed but when she and Bryan attended John’s house to pick up Kyla, John refused to let her go. He demanded additional visits between Kyla and John’s parents while John was away on vacation. This incident was video recorded by Bryan Shields. John is shown on the front lawn of his house, clutching Kyla in the presence of Ainsley and his niece. Bryan repeatedly asked John to stop talking about adult issues in front of the children, to deal with the issues over the parenting app, and to simply let Kyla go as agreed. John continues to address the issues in front of the children. He says, in a loud voice directed to both Bryan and Sharon:

“It will all come out in court. It will all come out in court. When you’re on the stand, because he will testify, I guarantee it. You can say your bit. The police will be there, CAS will be there, all three workers will be there, every freaking doctor that I have seen in the last three years will be there…”

“Brenna, Ainsley and Kyla’s lawyer that I have hired will be there ”

“Your lawyers can dump you”

“Get your shit together”

“When your father find that about this…”

“You think she (Ainsley) doesn’t like you because of me? When you start coming down on Brenna and Ainsley, that’s when they turned against you.”

“This will come out in court. I hope to God and she [Ainsley] knows it too. I hope to God you’re being truthful with your lawyer. If not, come the 23rd when you’re done being questioned by my lawyer, trust me, Deborah is going to freaking drop you like a bag of dirt or you’re going to make the deal or we’ll go to trial. You risk to lose everything. [Ainsley is heard to state: “you’ve done everything wrong”] I’ve been fair to you and this piece of crap. You started with Andy. You chose him over your kids and now you’re choosing this guy. It had nothing to do with me. I told you for years Sharon to get your shit together and start counselling with the kids and you refuse to go to counselling with your kids. I’ve been going for two and half years. I have factual evidence. You wait until trial. I’m going to see you on 20 April. I have a motion date. I will see you next Friday in court and then on the 22nd and 23rd when Deborah and Howard interview us both trust me it will all come out.”

[64] July 2019: On an evening and late July, Sharon took Brenna, Ainsley and Kyla to a park for a community movie night. This was the first time that all three girls had been together with Sharon in several weeks. John was away on vacation in Cuba with Dayna. While out of earshot of Sharon, Brenna recorded her interrogation of Kyla with respect to Bryan Shields. Brenna made three separate audio recordings. In response to very leading and incessant questioning from Brenna, Kyla made some vague disclosures that could be interpreted as inappropriate conduct on behalf of Bryan Shields.

[65] July 28, 2019: John calls the police upon hearing Kyla and Brenna discussing the subject matter of the recordings made by Brenna at the park, and upon seeing the girls “re-enact” Kyla’s allegations. John stated this was several days after his return from Cuba, but the police report indicates John had just returned to Canada at 4 a.m. that morning. The initial police report gives the time of the occurrence as July 28, 2019 at 3:13 p.m. John stated that Kyla had been dropped off at his house between 1:00 and 1:30 p.m. that day.

[66] July 30, 2019: Constable Lauren Bird, an officer who has investigated over 500 sexual abuse allegations, reviewed the audiotapes and interviewed Kyla, Brenna and John. Constable Bird gave opinion evidence as a lay witness. She believed Kyla had been coached. When Constable Bird informed John and Brenna that no criminal charges would result from Kyla’s disclosure, Brenna became irate. Constable Bird had the impression that Kyla was being victimized by her sister. She described Kyla as being uncomfortable, close to tears and saying, “I just want to go home.” Constable Bird was unequivocal in stating her belief that Bryan Shields had not sexually abused Kyla.

[67] Early August 2019: A few days after John learned that no criminal charges were being brought against Bryan Shields, he contacted Constable Bird yet again and wanted her to re-interview Kyla. He said that Kyla had remembered further details. Constable Bird refused to entertain that request.

[68] Both John and Dayna Schuyler testified that they believe that Kyla was abused by Bryan Shields. At best, this shows very poor judgement. Listening to the initial audiotapes, it is clear that Brenna had an agenda while interrogating her sister. There is no credibility whatsoever to Kyla’s allegations. The only question is whether Brenna hatched this plot on her own or whether she was guided by John. Sharon believes John is behind this but that is speculation. There is no evidence to support that thesis. On the other hand, all the parents involved in this matter acknowledge that Brenna is very headstrong, can be vindictive, and has at various times “had it in for” anyone in a relationship with Sharon or John. It is far more likely that Brenna did this on her own in an effort to get rid of Bryan Shields, and perhaps please her father in the meantime, than John put her up to it.

[69] The fact that Dayna and John wholeheartedly bought into this obviously concocted narrative, with Dayna even admitting that she never listened to the original audiotapes, is the most concerning aspect of this incident.

CAAP Assessment

[70] At the request of Brant Family and Children’s Services, the Child Advocacy and Assessment Program (“CAAP”) prepared an Impact of Maltreatment Assessment of this family. The report is dated March 2, 2017.

[71] Key portions of the CAAP Assessment include:

a. Brenna and Ainsley parroted the respondent’s desire for 50-50 parenting;

b. Brenna said that Sharon only wanted the children “61% of the time” so that John would have to pay child support;

c. Brenna expressed worry about John hurting himself;

d. Brenna believed that Sharon was trying to take the children away from John;

e. Brenna stated that the child protection worker was trying to help Sharon, and hinder John;

f. Brenna’s understanding of the past interpersonal violence between her parents reflects John’s perceptions of the events;

g. Brenna aligned with John;

h. Brenna’s alignment with John likely occurred, in part, because she perceived Sharon as responsible for the separation;

i. Brenna’s alignment may reflect role reversal;

j. Brenna expressed that she felt like the parent; and

k. Brenna had concerns for John and assumed responsibility for his well-being.

[72] John admitted to the assessors, “So I sat my kids down… We should be parenting 50% of the time. That’s what I’m fighting for and I’m not going to stop until I get it.”

[73] At the date of separation, Sharon and the children spent some time at a shelter.

[74] When asked further about her understanding of the situation, Brenna suggested that Ms. Misiuda went to the shelter because “dad supposedly cheated on mom and because he supposedly spit on mom.” Brenna stated that these things “didn’t happen” and suggested that it was because of “mom’s lawyer” who reportedly “lies to get what she wants.”

[75] The clinicians observed the following with regard to the parents:

“Mr. Misiuda often presented as emotionally distraught. His speech was at times pressured. He was at times tangential and he perseverated on the same themes and stories throughout his interviews in order to emphasize his point of view. At times, Mr. Misiuda was difficult to contain such that his sessions extended well beyond the scheduled appointment times. Throughout his interviews, Mr. Misiuda expressed significant worries about his children, particularly Brenna, who he identified as the most distressed and disruptive of his three children. However, despite repeated redirection from the interviewers, Mr. Misiuda at times struggled to maintain his focus on the children and repeatedly resumed his focus on Ms. Misiuda’s behaviours and what he perceived to be his own victimization in the context of his separation from Ms. Misiuda. Moreover, he minimized his own role and responsibility for any conflict with Ms. Misiuda and denied that he had ever behaved in a way that was threatening or aggressive towards Ms. Misiuda or the children. When discussing the adult information that the children were privy to, Mr. Misiuda either denied that he shared information with the children or justified his actions by repeatedly suggesting that he wished to be honest with them especially when discussing his position and experiences with Ms. Misiuda and the ongoing dispute regarding custody and access.

Mr. Misiuda repeatedly suggested that he wanted an amicable relationship with Ms. Misiuda such as they could coparent, however he was often critical of her and was dismissive when it was suggested that Ms. Misiuda might perceive him as threatening given his history of anger and assault. He demonstrated little understanding of the impact of his behaviours on the children.”

[76] The evidence at trial confirmed the facts outlined in the CAAP report.

[77] The CAAP assessors correctly identified the significant issues facing the family. They made 13 recommendations with an aim to putting the family back on a healthy path. Little, if anything, changed as a result of the recommendations.

Parenting Issues – Analysis

[78] Brenna and Ainsley spend time with their mother as they deem suitable. That has been very little until recently. There has been a recent uptick in the frequency and duration of the time spent by the two eldest with Sharon, including some multi-day visits. That is encouraging.

[79] With respect to Brenna and Ainsley, John and Sharon do not disagree over the schedule to be imposed. Both parents are content that the order be that Brenna and Ainsley spend time with Sharon in accordance with their wishes. Sharon realizes that Brenna and Ainsley currently reside with their father and feels that an order forcing them to change residence, given their ages, might cause more problems than it solves. She remains optimistic that the current trend of increased periods of time with her will continue. She feels that the likelihood of the girls increasing their time with her and strengthening their relationship with her is far greater if she is granted her requested order. That is, the best hope for rehabilitation is if a specific schedule is set in the order. If the girls desire more time with Sharon, it will be easier for the girls to follow a schedule already outlined in a court order as opposed to having to negotiate a fresh schedule going forward.

[80] The schedule that Sharon proposes for Brenna and Ainsley is, essentially, that they are with her every Wednesday and Thursday night and alternating weekends from Friday through Monday morning. This is a 5-2-2-5 schedule.

[81] Sharon also seeks decision making authority for Brenna and Ainsley.

[82] John simply wants the order to state that Brenna and Ainsley reside with John and that they have visitation time with Sharon in accordance with their wishes. His order sought does not mention decision making responsibility, but it is inherent in his evidence and submissions that he feels that is the only logical choice. He essentially feels this is a done deal since Brenna and Ainsley have voted with their feet and have no desire to change the status quo.

[83] Regarding Kyla, Sharon seeks to maintain what she asserts is the status quo. Her evidence was that Kyla has resided primarily with her since the separation. John denies that. He and his parents and his twin brother gave evidence that, despite the formal order not changing, Kyla was more or less visiting each parent equally in the last few years before trial.

[84] The court is to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being when determining a parenting order.

[85] John’s conduct from the date of separation forward, and particularly in the early days of the separation, shows that he has little regard at all for his children regarding these primary considerations. This trial has been a highlight reel of how not to behave as a parent.

[86] John acted as if his children were pawns to be used to achieve his goals. He repeatedly discussed adult issues with his children. He repeatedly used them as messengers. He repeatedly used them as information sources with respect to Sharon’s home. He repeatedly undermined Sharon’s authority over her children in her own home. By calling the police at the drop of a hat, without so much as a phone call to Sharon to discuss the issue first, he repeatedly undermined her sense of security in her own home. Worst of all, he made absolutely certain that the children knew that it was Sharon’s fault that they were no longer together. This was the big lie. This was John fulfilling his promise made in April 2015 that he would make the children hate her. When it comes to determining parenting responsibility, John’s behaviour is disqualifying.

[87] Sharon made a few significant mistakes of her own. It was poor parenting to withhold Ainsley’s hockey equipment on the eve of her tournament. Even though she had justification to do so because of John’s lack of consideration, she did not appreciate the impact this would have on Ainsley. It also gave John ammunition to use against her with the children once again. As well, it was wrong for Sharon to surreptitiously terminate Brenna’s “employment” at her maternal grandmother’s salon. Sharon was hurt that this time was not being spent with her, but Brenna enjoyed this role and was, at the time, in need of purpose and direction.

[88] But these transgressions pale in comparison, by orders of magnitude, to the inexcusable behaviour of John.

[89] Reviewing the factors to be considered under section 16 (3) of the Divorce Act there is no justification to award decision-making responsibility to John and to deny decision-making responsibility to Sharon.

[90] There is no evidence to suggest Sharon would be unaware of or be unable to meet the children’s needs.

[91] While Brenna and Ainsley have a stronger relationship with their father at this time, Sharon is allowing their wishes to dictate their time with her. She is not threatening the strength of that familial relationship.

[92] She has established that she will foster Kyla’s relationship with John if Kyla resides with her. John’s behaviour throughout, and recently highlighted in the “front lawn video” of April 7, 2018, confirms that he will prioritize his needs and his demands over Sharon’s relationship with Kyla. That video showed John physically preventing Kyla from returning to Sharon’s care, while denigrating Sharon mercilessly in front of three children for several minutes. He knew the camera was rolling yet he could not help himself from asserting what he felt was his dominance and superior position over Sharon on all outstanding issues. This video shows that John absorbed nothing from the detailed and thorough CAAP assessment which critiqued his early behaviours harshly.

[93] Sharon is clearly the spouse more willing to support the development and maintenance of the child’s relationship with the other. The CAAP report outlines their concerns that John was undermining Sharon’s role as a mother and that he was essentially oblivious to it. As can be seen by the incidents in February and April 2018, this behaviour did not improve. John continued to overtly or tacitly approve of actions or words of Brenna and Ainsley that cut to the core of Sharon’s authority in her own home. The incidents in February 2018 that led to Ainsley leaving Sharon’s home permanently look suspiciously like a setup. Even if it was not a setup, John did nothing to prevent or discourage Ainsley from leaving. He simply accepted it as a fait accompli and moved on.

[94] Brenna and Ainsley’s views and preferences are being honoured. Sharon is not seeking to override them. The children apparently wish to remain residing with John, although there was some last-minute, unverifiable testimony to the contrary, and Sharon is not challenging that. She is simply making sure that the children know the door is open and the path is clear when and if they are ready.

[95] There was no recent, reliable evidence as to what Kyla’s views are regarding where she wants to live. But even if she had stated that she wished to live with John, or even spend more time than under the current order, I would discount it because of the past behaviour of John and his constant coaxing of the children to support his plan. I would prioritize the need to maintain Sharon’s role in Kyla’s life and the need to protect that role from what happened with Brenna and Ainsley.

[96] John emphasized the need for the three children to be together as often as possible. If John is truthful in his assertion that he promotes Sharon’s relationship with Brenna and Ainsley at every turn, then this aspect of the family dynamic can also be used to that end. That is, if Brenna and Ainsley are exhibiting a need or desire to see Kyla more, that would present an opportunity to encourage them to spend more time with Sharon. Given how John placed a wedge between Sharon and the eldest girls, the desire for the girls to be together is overridden by concerns for Kyla’s relationship with her mother. Again, it is comforting that Brenna and Ainsley are now far less reluctant to spend lengthy periods with Sharon than they had been previously.

[97] The children have no stated views and preferences with respect to who should be making decisions for them. Even if they did, and if they preferred for John to be the decision-maker, I would disregard that preference given the conduct of John that has led to the status quo.

[98] The other relevant factor, other than violence which will be dealt with shortly, is the ability and willingness of John and Sharon to communicate and cooperate with one another regarding the children. This factor, again, clearly favours Sharon’s plan. Sharon has shown a far greater ability than John to cooperate regarding the children. There was nothing in evidence to suggest that Sharon, going forward, would do anything other than prioritize her children’s best interests in making decisions on their behalf. This is true whether or not they expand or contract their existing relationship with her. The same cannot be said of John. It is fair to say that John cooperates when it helps him or when he feels like it. He has a poor record of cooperating or communicating solely because it is the right thing to do for the benefit of his children. John would say that his cooperation and communication has vastly improved in recent years. This is true, but it is mostly as a result of the fact that John got his way and wrestled Brenna and Ainsley away from their mother’s care entirely. Now that Brenna and Ainsley are old enough to set their own agenda, John is far less intense and unilateral with respect to his control over communication and demand for cooperation.

[99] This family has seen more than its fair share of violence. During the CAAP assessment, the children reported frequent screaming, yelling, some pushing, and some hitting. The assessment highlighted the children’s fear of their father’s anger, which he dismissed or downplayed. By far the most violent member of the family is Brenna. There are numerous police reports, generated by calls from each parent and at least one grandparent, outlining Brenna’s capacity for violence. The parents were each, at different times, completely unable to control Brenna. Many times, the disagreement between John and Sharon was about who would take Brenna as neither parent wanted her when she was out of control. Thankfully, age seems to have matured Brenna greatly and all the evidence about her recent progress is extremely positive.

[100] John’s behaviour around the date of separation, as exhibited by the 39-minute audio recording of John’s diatribe towards Sharon in April 2015, could be deemed coercive and controlling behaviour. It certainly was incessant and unyielding.

[101] It remains a concern that John downplays or dismisses his capacity for anger, the effect his past anger has had on the children, and Sharon’s stated fear of him. John continues to believe that Sharon’s alleged fear was fake and used to manipulate the system. I believe Sharon’s evidence that she was fearful of John.

[102] For all of the above reasons, I find that Sharon’s requested parenting order is in the best interests of Brenna, Ainsley and Kyla.

[103] Sharon’s proposed order has detailed schedules for holidays, use of an app for communication, ongoing psychotherapy for Brenna and Ainsley as recommended by CAAP, reconciliation therapy and the usual clauses regarding travel and permissions. It also includes a six-page Schedule A titled “Parenting Behaviours”. John did not oppose these clauses and his proposed order essentially mirrors them. These clauses shall be incorporated into the final order.

[104] John does oppose a clause that Sharon requested stipulating that each parent should supply all the sports equipment the children will need, rather than share that equipment. Sharon’s concern in this regard stems from the disputes over Ainsley’s hockey equipment. On this point, John is correct. It is not practical for a hockey player to have two bags of equipment. Hockey equipment is different than soccer shin pads or baseball cleats. It requires more regular maintenance such as skate sharpening and laundering. It is also far more expensive than most other sporting equipment. John and Sharon will simply have to figure out a way to ensure that the children have their hockey equipment when necessary.

Contempt of Court

[105] Months before the trial was scheduled, Sharon brought a motion seeking to have John found in contempt of the order of Justice Whitten dated July 30, 2015. This motion remained outstanding at the commencement of trial. With consent of counsel, I ordered that the motion would not proceed prior to trial, but that the issue of contempt would be dealt with at the conclusion of evidence along with the other outstanding issues.

[106] Paragraphs 6 and 7 of the July 30, 2015 order state that neither party shall speak disparagingly about the other in the presence of the children and that neither party shall discuss with the children any matters relating to the court proceedings, financial issues or any other adult issues. John admitted to breaching these terms repeatedly.

[107] He admitted communicating with Sharon through the children. He admitted discussing adult issues in front of or with the children. He admitted that he “sat my kids down” to discuss the parenting arrangements. He admitted refusing to use the Our Family Wizard app exclusively. Virtually every recording of John tendered into evidence contained breaches of these court ordered terms.

[108] I find that John was repeatedly in contempt of the order of Justice Whitten dated July 30, 2015.

[109] Sharon seeks an order striking John’s pleadings. I decline to do so because that would have no consequence to John. There are no unique issues in John’s pleadings. I must make the appropriate orders on the outstanding issues based on the evidence that I have heard whether or not John’s pleadings stand.

[110] John submits that because he has admitted to breaching a court order that it would be a travesty of justice if he were dealt with harshly by the court. He emphasizes that there were numerous opportunities for John to bring a similar motion for contempt against Sharon but that he “took the high road” and decided not to. He suggests that a penalty of a $500 payment to Sharon by John would be appropriate.

[111] It is true that Sharon’s actions have also, at times, contravened the July 30, 2015 order. Had a motion for contempt been brought by John it would also have been successful. But having heard all the evidence in this trial that spanned 13 days, Sharon’s contempt is far less egregious than that of John’s.

[112] John’s contemptuous behaviour, as outlined under the parenting sections above, was pervasive, incessant, purposeful, and, ultimately, effective. In essence, John was playing offence while Sharon was playing defence. As well, Sharon showed a genuine remorse for her actions that were not in the children’s best interests. John, on the other hand, continued to minimize the reality of his actions and the impact his actions had on the children and the situation generally.

[113] The court has wide powers under Rule 31 (5) with respect to remedies for contempt. The court can do anything that the court decides is appropriate. In this case, the appropriate remedy is to address John’s contempt when dealing with the issue of costs.

Retroactive child support and section 7 expenses

[114] There has never been a child support order or agreement in this case, despite six years of litigation.

[115] John’s position is that Sharon owes him $50,340 for retroactive child support from June 1, 2015 to May 31, 2021. He also claims section 7 arrears for that period of $3,371.24.

[116] Sharon’s position is that John owes her arrears of child support, inclusive of section 7 expenses, in the amount of $2,788.

[117] The parties do not agree on the calculation of John’s income in 2019. They also do not agree where Ainsley and Kyla lived for child support purposes during certain periods of time.

[118] In 2016 John was in receipt of long-term disability benefits. In 2019, he was awarded a settlement of his claim against the insurer totaling $70,000; $45,000 was taxable, representing his lost 2016 income, $25,000 was not taxable and was designated in the settlement as being the amount for his legal fees. Sharon seeks to attribute the income loss portion of that settlement back to John’s 2016 income even though he received it in 2019. She also seeks to include the $25,000 amount for legal fees in John’s 2019 income.

[119] Sharon’s calculations are based upon the assumption that Sharon had two children living primarily with her through until the end of 2017. Thereafter one child lived with Sharon and two children lived with John.

[120] John’s calculations are based on the assumption that from the time Brenna moved in with John in September 2015 the other two children spent 50% of the time of each parent and that when Ainsley moved in with John in 2018, Kyla continued to reside 50% with each parent.

[121] John, his mother, his twin brother and Dayna Schuyler all gave evidence as to what they recalled as the frequency of Kyla and Ainsley being under John’s care. They all gave the same opinion that Ainsley went back and forth on a “roughly 50-50 basis” until she moved in with John and that Kyla has always come back and forth spending approximately 50% of time with each parent.

[122] Sharon’s method of calculating John’s income is incorrect. John was eventually awarded his lost 2016 income but he did not receive it until 2019. It cannot be correct to retroactively increase John’s 2016 child support obligation based on income he received three years later. The proper way to handle that is to include that income when calculating his 2019 child support obligation.

[123] Similarly, the amount that John’s lawyers received for negotiating his settlement should not be included in his income. If this were the only issue between the parties, more detail would be warranted in terms of determining and outlining the reasons why this is so but, because of the nature of this case, more detail is not required.

[124] Because Sharon’s best case scenario had John owing her a small amount of child support arrears, and because her best case scenario fails on at least two points, Sharon would have owed John child support had her obligation been calculated strictly according to the child support guidelines in the six years that passed between separation and trial.

[125] I do not accept that the evidence of John’s family regarding the roughly 50-50 sharing of the children when they were not specifically living with John is accurate. No one kept specific track of when the children were with each parent. The only governing document was the order in place at the time. I cannot rely on the overall impressions of well-meaning but obviously biased witnesses to determine that the living arrangements were other than outlined in the court order.

[126] But even if I am wrong on that point, it would not change the outcome.

[127] John was obsessed with the 50-50 shared parenting regime from the outset. His conduct in furtherance of that goal was deplorable and not in the best interests of the children. It is clear that his children have been damaged as a result of his conduct, despite the fact that the two eldest now live primarily with him.

[128] In S.(D.B.) v G.(S. R.), 2006 SCC 37, the Supreme Court of Canada confirmed that retroactive child support awards are discretionary, and should be awarded where fairness dictates it. A court should strive for a holistic view of the matter and decide each case on its facts.

[129] It would be a travesty of justice for Sharon to owe John any amount of money regarding the children for the time since the date of separation.

[130] Denying John any retroactive child support will not cause the children any hardship. The evidence established that the children have not suffered as a result of lack of finances in either home. The parents have generally been able to make ends meet and to ensure that the children are well cared for and able to enjoy many extracurricular activities.

Ongoing Child Support

[131] John’s 2021 income is $108,944. Sharon’s 2021 income is $91,175.

[132] Section 9 of the Federal Child Support Guidelines states:

Shared parenting time

9. If each spouse exercises not less than 40% of parenting time with a child over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared parenting time arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[133] Parenting time, as defined in the Divorce Act, means the time that a child of the marriage spends in the care of a spouse, whether or not the child is physically with that person during the entire time.

[134] Sharon asks that John pay child support to Sharon of $700 monthly, which is the net amount owing under section 9 of the Guidelines with Kyla primarily residing with Sharon and Brenna and Ainsley having shared parenting time. This would be in accordance with the wording of the parenting order made since the schedule in the order provides Sharon with at least 40% of the time with Brenna and Ainsley. It does not matter, under the new definition of “parenting time” whether or not Brenna and Ainsley actually follow the schedule.

[135] But I decline to make such an order. Having regard to the conditions, means, and needs of John and the children it would be a mistake to grant such an award to Sharon. Despite the wording of the parenting order, it is unlikely that Brenna or Ainsley, at least in the near future, will actually spend over 40% of their time under Sharon’s care. John will undoubtedly have the greater burden of the increased costs of shared parenting. In addition, I have no confidence that John would be able to accept such an order without embarking on a further and more desperate campaign to have all the children under his wing. This would be disastrous for Sharon and the children.

[136] There will be no Guideline child support payable by either party to the other.

[137] The parties shall each be responsible and shall pay 50% of all special and extraordinary expenses incurred for the children, provided that such expense has been agreed to in advance in writing by each party.

Equalization of Net Family Property

[138] The only items upon which the parties disagree are the value of the 1971 Chevelle owned by John and the treatment of the joint line of credit which existed at the date of separation.

[139] The line of credit is easily dealt with. During his cross-examination John conceded that the value of the joint line of credit should not be included in his net family property as it was clearly and concisely dealt with in an Interim Separation Agreement.

[140] The value of the 1971 Chevelle is a more complicated issue.

[141] It is uncontested that the Chevelle was purchased by John in Mississippi during the marriage. He restored, improved, and upgraded the car during the marriage. He sold it after separation.

[142] John purchased an insurance policy for the vehicle which listed its value as $35,000. That is the value that Sharon wishes to attribute to the asset for net family property purposes.

[143] John says that that value is not accurate. He states he purchased the vehicle for $6,500 USD and sold it for $9,500 Canadian.

[144] John’s evidence was that he purchased the vehicle in Mississippi for $6,500 USD. He acknowledged under cross-examination that he lied on his customs declaration by claiming the vehicle was purchased for $4,500 USD.

[145] John gave evidence of the improvements and restorations made to the vehicle after he purchased it but he did not provide any receipts evidencing the work that was completed or the cost of the parts.

[146] John listed the car on Kijiji. The best offer he received was for $9,500 and that is the price he sold it for.

[147] During his oral questioning in the course of litigation, John confirmed he was in possession of the sales receipt and gave an undertaking to produce it. In 2019, John answered the undertaking by stating the sales receipt could not be located. Only in February 2021, on the eve of trial, did John produce a sales receipt indicating a sale price of $9,500. The sales receipt is handwritten, and the purchaser’s name and signature are illegible. John gave a detailed explanation as to why and how receipt only came to light recently. Essentially, Dayna took it upon herself to pour through John’s records and she found the receipt during trial preparation. Dayna corroborated this story.

[148] During his oral questioning in the course of litigation, John stated that the entire $9,500 proceeds of sale were deposited into his personal PC bank account. At trial, John’s story changed. He stated he returned from selling the Chevelle and gave his mother the cash from the sale as repayment for a loan.

[149] There is no loan listed on John’s financial statements filed in this proceeding. John’s mother gave evidence at trial but she was not asked about receiving this cash from John or about this alleged loan, either in-chief or under cross-examination.

[150] Dayna Schuyler gave evidence about seeing John’s cash proceeds and John removing $200 from the cash total before giving the money to his mother. She indicated she was upset that he gave his mother the money because she thought John should keep it for expenses.

[151] John stated that the $35,000 value for the vehicle listed on his insurance policy was as a result of the recommendation of the agent that sold him the policy. John told the agent what he paid for the car, but the agent was confident that the car could be insured for a much higher value. John simply went along with the agent recommendation.

[152] It is John’s onus to prove the value of his asset. I find that John has, barely, discharged this onus. Despite his credibility issues, it is more reasonable to accept the value of $9,500 than $35,000 for this vehicle. I am mostly persuaded by the fact that the actual purchase price of the vehicle was $6,500 USD, which was verified by Canada Customs after they called the vendor to verify the true purchase price. John lied about that price but there is no doubt that $6,500 USD is what he paid for the car.

[153] Dayna Schuyler’s evidence with respect to how the receipt was found did not suffer from the same credibility deficit as did her testimony with respect to her sexual relationship with John. On this point she was straightforward and convincing.

[154] It is far more likely that Dayna and John are telling the truth about the sale price than it is to believe that they forged a sales receipt on the eve of trial.

[155] As such, the value of the 1971 Chevelle for net family property purposes is $9,500 as of the date of separation.

[156] John also takes the position that the car was purchased using his WSIB proceeds and, therefore, is excluded property. John failed, however, to trace the purchase funds back to the WSIB proceeds. He provided two withdrawal slips from a bank machine that did not identify a specific bank account. He was unable to link those withdrawal slips to the account out of which the purchase funds were allegedly withdrawn or to the account into which the WSIB proceeds were deposited. The car is not excluded property.

[157] The parties agree that the equalization payment shall be satisfied by a transfer from John’s pension to Sharon’s pension. Incorporating my findings into their equalization calculations results in John owing an equalization payment to Sharon in the amount of $62,250.

[158] Sharon is entitled to prejudgment interest on the equalization payment. I have calculated that to be $7,263. If I have erred in the calculation, counsel may address that issue with me via joint correspondence.

Costs

[159] Sharon has been the more successful party in these proceedings. She has been wholly successful regarding the parenting issues, partly successful on the child support issues and partly successful on the property issues. The only issue on which John was entirely successful was with respect to the value of the 1971 Chevelle.

[160] The parenting issues were by far the most contentious and took the bulk of the trial time.

[161] In the usual course, and without having regard to any Offers to Settle that may have been exchanged, Sharon would likely receive her costs on a partial indemnity basis, tempered by a reduction due to John’s success on the Chevelle issue. The Chevelle issue, in my estimation, took approximately one fifth of the trial time.

[162] As outlined above, John has been found to have repeatedly acted in contempt of the order of Justice Whitten of July 30, 2015. The penalty that best fits these egregious actions is for Sharon to receive a greater costs award than she would have otherwise.

[163] Sharon shall have, as a minimum, her entire reasonable costs of this trial on a partial indemnity basis. The indemnity level may increase upon review of any offers to settle. If the parties cannot resolve the issue of costs given that direction, I will receive submissions not to exceed 3 pages plus Offers to Settle plus Bills of Costs. Sharon’s submissions shall be due on or before August 31, 2021. John’s submissions shall be due on or before September 17, 2021.

Orders

Parenting Orders

1. The Applicant and Respondent shall be divorced with the divorce proceeding on an uncontested basis. Each party shall be responsible for one half of the costs of the divorce fixed in the amount of $1,500 total ($750 each).

2. The Applicant and Respondent shall share parenting time of the children, Brenna Ellen Misiuda (hereinafter “Brenna”) born October 27, 2004, Ainsley Dianne Misiuda (hereinafter “Ainsley”), born August 27, 2006 pursuant to section 16.1 and 16.2 of the Divorce Act, R.S.C. 1985, c.3(2nd Supp.), as am (the “Divorce Act”) on an equal basis on a schedule determined by the Applicant having regard to the children’s wishes or in accordance with paragraphs 7 through to 19 inclusive.

3. Commencing Sunday, May 23, 2021, the child, Kyla Anne Misiuda (hereinafter “Kyla”) born May 20, 2012 shall have parenting time with the Applicant and the Respondent based on a schedule set out below and in accordance with paragraphs 8 through to 19 inclusive:

Regular Parenting Time Schedule - Kyla

	Sunday	Monday	Tuesday	Wednesday	Thursday	Friday	Saturday
Week 1	Mother	Mother	Mother	Mother	Mother	Mother until end of school or 4:00 p.m. if not in school/Father pick up 4:00 p.m. or after school	Father
Week 2	Father	Father deliver to school or if not in school until 10:00 a.m./Mother thereafter	Mother	Mother until after school or 4:00 p.m. if not in school/Father after school or 4:00 p.m. if not in school	Father deliver to school/until 10:00 a.m. if not in school/Mother thereafter	Mother	Mother

4. Pursuant to section 16.3 of the Divorce Act and in accordance with paragraphs 20 to 22, inclusive, the Applicant shall have final decision-making responsibility concerning the children, Brenna, Ainsley and Kyla’s well-being including decision about all aspects of the child’s physical and emotional health, counselling, education and significant extra-curricular activities.

5. Pursuant to section 16.4 of the Divorce Act, the Applicant and Respondent may make inquiries and be given information by the children's teachers, school officials, doctors, dentists, health care providers, counsellors, coaches, summer camp counsellors or others involved with the children.

6. Pursuant to section 16.6 of the Divorce Act, the Applicant and the Respondent shall fully comply with the terms of the Parenting Plan attached as Schedule A which shall form part of this Court Order.

Regular Parenting Time Schedule – Brenna and Ainsley

	Sunday	Monday	Tuesday	Wednesday	Thursday	Friday	Saturday
Week One	Mother	Father	Father	Father (return to school or to Mother at 10:00 a.m. if children are not in school) /Mother	Mother	Mother (return to school or to Father at 10:00 a.m. if children are not in school)/Father	Father
Week Two	Father	Father	Father	Father (return to school or to Mother at 10:00 a.m. if children are not in school) /Mother	Mother	Mother	Mother

Holiday Schedule

8. All holiday weekends except Easter and Thanksgiving shall be in accordance with the regular parenting time schedules.

March Break

9. The children will have parenting time with the Respondent during the school March Break (Spring Break) in odd-numbered years and with the Applicant during even-numbered years, from their leaving school on the Friday as the March Break (Spring Break) starts until their return to school on the Monday following the break.

Easter

10. The Easter weekend shall be split equally with the first half being from Thursday evening before Good Friday from after school until Easter Saturday at 7:00 p.m. and the second half from Easter Saturday at 7:00 p.m. until Easter Monday at 7:00 p.m. In even numbered years, the children, Brenna, Ainsley and Kyla shall be with the Applicant/mother for the first half and with the Respondent/father for the second half. In odd numbered years, the children, Brenna, Ainsley and Kyla, shall be with the Respondent/father for the first half and with the Applicant/mother for the second half.

Thanksgiving

11. The Thanksgiving weekend shall be split with the first half being from Friday after school until Sunday at 10:00 a.m. and the second half being from Sunday at 10:00 a.m. until Monday at 7:00 p.m.

12. The Respondent/father shall have the children Brenna, Ainsley and Kyla in his care for the first half in odd numbered and the Applicant/mother shall have the children in her care for the second half. In even numbered years, the Applicant/mother shall have the children, Brenna, Ainsley and Kyla in her care for the first half and the Respondent/father shall have the children in his care for the second half.

Christmas School Break

13. The Christmas school break except for December 24, 25 and 26 shall be celebrated in accordance with the regular schedule set out above.

14. For December 24, 25 and 26, the first half shall be from December 23 at 7:00 p.m. until December 25 at 1:00 p.m. and the second half shall be from December 25 at 1:00 p.m. until December 26 at 7:00 p.m. The Applicant/mother shall have the children, Brenna, Ainsley and Kyla in her care for the first half (December 23rd at 7:00 p.m. until December 25th at 1:00 p.m.) in odd numbered years and the Respondent/father shall have the children in his care for the second half (December 25th at 1:00 p.m. until December 26th at 7:00 p.m.).

15. In even numbered years, the Respondent/father shall have the children, Brenna, Ainsley and Kyla for the first half (December 23rd at 7:00 p.m. until December 25th at 1:00 p.m.) and the Applicant/mother shall have the children for the second half (December 25th at 1:00 p.m. until December 26th at 7:00 p.m.).

Summer Holidays

16. Each parent shall have the children, Brenna, Ainsley and Kyla for two non-consecutive weeks from Sunday at 7:00 p.m. until the following Sunday at 7:00 p.m. in each of July and August. The Applicant shall have the first choice of her weeks in odd-numbered years and the Respondent shall have the first choice of his weeks in even numbered years. The regular access schedule will be suspended during the selected weeks of each parent. Notice of the selected week(s) shall be communicated by Our Family Wizard (“OFW”) app by June 1st each year. The regular parenting time schedule set out in paragraphs 3 (for Kyla) and 7 (for Brenna and Ainsley) shall be suspended for the week(s) selected by each parent pursuant to this paragraph.

Father’s Day

17. The Respondent/father shall have the children each Father’s Day from 10:00 a.m. until 7:00 p.m.

Mother’s Day

18. The Applicant/mother shall have the children each Mother’s Day from 10:00 a.m. until 7:00 p.m.

Children’s Birthdays

19. The children’s birthdays shall be celebrated in accordance with their regular parenting time schedules.

Decision Making and Other Parenting Issues

20. The Applicant shall have decision-making responsibility about the children’s welfare, including decisions about the children’s:

(a) Education;

(b) Major non-emergency health care, both physical and emotional healthcare, including counselling and therapy;

(c) Major recreational activities; and,

(d) Religious activities.

21. The Applicant will first consult with the Respondent, using the Our Family Wizard (“OFW”) internet app in respect of all important decisions in paragraph 20 above and will seek his input. After consultation with the Respondent, the Applicant will exercise decision making responsibility. The Applicant will advise the Respondent of her decision, in writing, using the OFW app.

22. Notwithstanding any opposition or disagreement by the Respondent with respect to the Applicant’s decision, the Applicant’s decision-making will prevail.

23. Neither shall speak negatively about the other parent to the children. Nor shall either parent allow their respective family members, significant others, spouses or friends speak negatively about the other parent around the children.

24. Neither parent shall speak about the parenting schedule or periods of residence, parenting time or exercise of decision making responsibility with the children and neither shall Applicant or the Respondent allow others to speak to the children about the parenting time or exercise of decision making responsibility. Neither parent shall express to the children their opinion about the fairness of parenting time or decision-making and neither shall either parent allow any of the children to alter the schedule of parenting time as ordered by the court.

25. Pursuant to section 16.1(6) of the Divorce Act, the parties shall jointly retain a Parenting Coordinator, selected by the Applicant, to resolve any disputes between the parties concerning the children and the interpretation of the Parenting Order. The parties shall share the costs of parenting coordination on a 50/50 basis. In the event that the Respondent fails to pay his share of the cost of the Parenting Coordinator, the unpaid costs shall be determined by a Judge on Motion, without notice, and shall be enforced by the Director of the Family Responsibility Office as unpaid child support.

26. Neither the Applicant nor the Respondent shall direct communication with the other including via text, telephone or email. The parents shall only communicate through the internet App “Our Family Wizard”. OFW shall only be used to communicate concerning a child’s illness, medications or scheduled appointments. OFW shall only be utilized by a parent for the sole purpose of providing information about the children to the other. OFW shall be monitored by the parenting coordinator, retained jointly by the parties. OFW shall not be used as a mechanism to criticize or berate the other parent in any way especially regarding the parent’s relationship with the child.

27. The children shall never be used to communicate between the parents or to carry messages between them.

28. The children shall attend school, every regular school day, unless due to illness. A child’s illness shall not be used to alter the regular parenting time schedule.

29. The child, Brenna, shall continue in psychotherapy with Dr. Knoll. Brenna’s communication with Dr. Knoll shall remain strictly confidential and shall not be used by either parent as part of the court process. Further, Brenna’s therapy shall not include involvement of either parent unless the therapist determines parental involvement is necessary.

30. The Applicant shall retain the services of Dr. Knoll to provide psychotherapy for Ainsley in accordance with the assessment recommendations contained in the Child Advocacy and Assessment Program (“CAAP”) report dated March 2, 2017. Ainsley’s communication with her psychotherapist shall remain strictly confidential and shall not be utilized in the court process. Neither parent shall be involved in therapy unless Dr. Knoll determines that this will be beneficial for Ainsley.

31. Pursuant to section 16.1(6) of the Divorce Act, on the recommendation of Dr. Knoll, the Applicant and the children, Brenna and Ainsley, shall engage in reconciliation therapy directed towards the reconciliation of the relationship between the Applicant and Brenna and Ainsley. Such reconciliation therapy may be conducted by Dr. Knoll or such other qualified reconciliation therapist selected by the Applicant. The Respondent shall fully support and encourage such reconciliation therapy.

32. The Applicant shall enroll Brenna, Ainsley and Kyla in a program of social/recreational programming in accordance with the CAAP recommendations.

33. Neither parent shall use any form of physical discipline or corporal punishment on Brenna, Ainsley or Kyla. Neither parent shall permit their partner/spouse to use any form of physical discipline or corporal punishment on Brenna, Ainsley or Kyla.

34. Each party shall establish his or her own wardrobe of clothing, educational equipment such as computers, and iPads for the children when in his or her home.

35. Both parents shall be permitted to attend all doctors or specialist appointments for the children, with the exception of the children’s counselling appointments set out in paragraphs 29 and 30 herein. Neither parent shall communicate to the other in a manner that this not civil and respectful towards the other during these appointments.

36. The Applicant/Mother shall be responsible to schedule all non-specialist appointments for all children including but not limited to dentist, family doctor, eye doctor, Woodview counselling, Dr. Knoll (psychologist) appointments and reconciliation therapy appointments.

Travel and Passports

37. The Applicant shall apply for a Canadian passport or renewal for each child. The Respondent will sign the passport application or renewal. The Applicant will keep the passports and give them to the Respondent when he needs them for travel. The Respondent will return the passports promptly to the Applicant following the end of the travel.

38. If either parent plans travel outside of Canada with the children, that parent will give the other a detailed itinerary at least 30 days before it begins, including the name of any flight carrier and flight times, accommodation, including address and telephone numbers, and details as to how to contact the children during the trip.

39. If either parent plans a vacation without the children, that parent will give the other a telephone number where he or she can be reached in case of emergency or if the children wish to contact that parent.

40. If either parent plans a vacation outside Canada with the children, the vacationing parent shall provide, at his or her cost, a travel letter to the other parent to be notarized authorizing the children to travel. The non-vacationing parent shall sign and have the travel letter notarized, the cost of which (if any) shall be paid by the traveling parent.

Property Division

41. The Respondent shall owe the Applicant an equalization payment in the amount of $62,250.00 plus prejudgment interest in the amount of $7,263.00 to equalize the parties’ net family property to include their respective pensions through their employment.

42. This payment is an equalization payment in full satisfaction of all claims under Part I of the Family Law Act (including all claims with respect to the Applicant and Respondent’s pension interests). The equalization payment shall be paid by way of the Pension transfer described below.

Pensions

43. The Family Law Value of the Respondent’s OMERS pension Plan Registration Number 0345983 is $431,681.61 (“OMERS”) and the Family Law Value of the Applicant’s Ontario Teachers’ Pension, Plan Registration Number 0345785 is $320,476.27 (“OT Pension Plan”). The Respondent shall pay an equalization payment in the amount of $69,513.00 to the Applicant by transfer from his OMERS Pension to the Applicant’s OT Pension Plan in accordance with the Ontario Pension Benefits Act. The Respondent shall fully cooperate in the said transfer and shall sign any and all FSCO forms necessary to accomplish this. In the event that the Respondent fails to complete the above described transfer forms within five (5) business days of this Order, the Applicant shall issue a charge against the Respondent’s property at 25 Brier Place, Brantford, Ontario N3R 3M3 in the amount of $69,513.00.

Child Support

44. For the purposes of determining child support for Brenna, Ainsley and Kyla, the Respondent’s income for 2021 is $108,944.00 and the Applicant’s income is $90,847.00. In determining the appropriate child support to be paid, having regard to the Table amounts for each parent, the increased cost of this parenting time arrangement, and the condition, means, needs and other circumstances of each parent and the children, there shall be no child support payable by either parent to the other.

45. The parties shall each be responsible and shall pay 50% of all special and extraordinary expenses incurred for the children, Brenna, Ainsley and Kyla, provided that such expense has been agreed upon in advance in writing by each party (save and except for medical expenses).

Costs

46. If the parties cannot resolve the issue of costs, submissions not to exceed 3 pages plus Offers to Settle plus Bills of Costs shall be filed with the Brantford Trial Coordinator. Sharon’s submissions shall be due on or before August 31, 2021. John’s submissions shall be due on or before September 17, 2021.

R. F. MacLeod, J.

Released: August 4, 2021