COURT FILE NO.: FC1345/18

DATE: January 4, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

M.N.B.

Laura Camarra for the applicant

Applicant

- and -

J.M.B.

Monique Rae Bennett for the respondent

Respondent

HEARD: November 16, 17, 18 and 19, 2021; December 6, 7, 8 and 9, 2021

TOBIN J.

Introduction

[1] The central issue in this case concerns what parenting order, for the parties’ two children, twins who are now almost five years old, will be in their best interests. The parties also seek orders for a divorce, child support, spousal support, and equalization of net family property.

[2] The respondent (“mother”) wants sole decision-making responsibility and a detailed parenting time schedule. She claims that her plan is in the best interests of the children because, in large part, the applicant (“father”) has engaged in family violence.

[3] The father asks for shared decision-making responsibility and parenting time with the mother. He denies that there was family violence between the mother and him, as described by her. He claims that whatever conflict there was between the parties was minor and no longer exists.

Facts

[4] The following is a brief summary of the facts relevant to this case. Additional findings of fact will be made as each issue is addressed.

[5] The parties met and began dating in the summer of 2011. At that time, the father was living in what became the matrimonial home, his residence in London. He was employed as an x-ray technician at a hospital. The mother was living with her parents (“maternal grandparents”) in Aylmer. She was a student at Fanshawe College, studying radiation technology. She graduated with her certificate in May 2012.

[6] After dating for a little over two years, the parties decided to live together. The mother moved into the father’s home in September or October 2013. This arrangement did not last very long. The mother moved out approximately five weeks later. In November 2013, she moved to her parents’ home. The relationship appeared to be at an end.

[7] In the new year, the parties began speaking again and eventually resumed their relationship. The mother moved into the father’s residence in July 2014.

[8] On September 26, 2015, the parties married and continued to live together at the father’s residence in London.

[9] Both parties were then working as x-ray technicians/medical radiation technologists. They worked at different hospitals.

[10] The parties became the parents of two children, L. and C., who were born in 2017.

[11] The mother had been off work for approximately two months prior to the children’s birth, as hers was considered a high-risk pregnancy.

[12] Following the birth of the children, the father took two weeks off from work to assist in the care of the children.

[13] The mother’s maternity leave began when the children were born and lasted 18 months. She returned to work as an x-ray technician in July 2018.

[14] The parties separated while the mother was on maternity leave. She and the children moved from the matrimonial home on March 23, 2018. The parties have not resumed cohabitation since. There is no reasonable prospect that they will do so.

[15] When the mother moved from the matrimonial home, she started living with the maternal grandparents in Aylmer. Eventually, she moved into a home that she first rented and then purchased. This home is located in Aylmer. That is where she now resides with the children. The father continues to reside in his home in London.

[16] Following the separation, the parties made arrangements for the father to see the children and have parenting time with them from time-to-time.

[17] The father started this case by way of Application issued October 18, 2018. The father wanted a joint parenting arrangement for the parties’ then two-year-old children. The mother wanted a custody order and a flexible access schedule that took into account the father’s work schedule.

[18] On January 30, 2019, Carey J. made a temporary order (“the Carey J. Order”) as follows:

1. The mother was granted custody of the children.

2. The mother was to meaningfully consult with the father on all major issues concerning the children before making these decisions. Also, she was to follow the recommendations of medical and educational professionals when making these decisions.

3. The parties were to exchange their work schedules three months in advance.

4. The children were to reside primarily with the mother.

5. The father would have time with the children:

(a) alternate weekends, with the pickup being either at daycare in Aylmer on Friday or, if the father was working on Friday evenings, the pickup would be on Saturday. The children were to be returned to the mother Sunday evening at 6 PM; and

(b) “midweek overnight when the [father] has more than two days off in a row …”

[19] The parties interpreted the midweek overnight provision of the Carey J. Order differently. This caused considerable conflict between the parties. The mother interpreted the clause as providing that the father would have one midweek overnight visit each week, but only if the father had two days off in a row. The father interpreted the clause to mean that he could have the children in his care midweek for a number of nights, as long as he had days off in a row. He was of the view that this clause allowed him to have the children up to 49 percent of the time.

[20] Eventually, the parties were able to appear before Mitrow J. to determine the correct interpretation of the order. Mitrow J. held that:

… a proper interpretation of the interim order is that one overnight per week for father is in the children’s best interests, and that that was the intent of the interim order.

[21] The order of Mitrow J. (“the Mitrow J. Order”) was made June 9, 2021.

Current Circumstances of the Parties

i) The Father

[22] The father is not working at this time. He last went to the hospital to work a shift on January 29, 2021. He, his employer, and union entered into an agreement that provided, in part, that:

1. the father resigned his employment effective May 29, 2021; and

2. the hospital would pay the father his salary and benefits until May 31, 2023.

[23] During the trial, the father described himself as being on permanent leave from his employment. His plan is to remain at home for the first year of the two years he is receiving his salary. After that, he intends to seek “part-time or any employment.”

[24] The father remains in his home and has the children in his care pursuant to the Carey J. Order and the Mitrow J. Order. His home is located in a quiet residential neighbourhood where he has the support and friendship of some of his neighbours. His home has appropriate amenities for the children.

ii) The Mother

[25] The mother continues to live in Aylmer in the home she purchased following the separation. This home is approximately two blocks from the children’s school. She continues to work as an x-ray technician. Her eight-hour shifts start as early as 7 AM and as late as 9 AM. These shifts end as early as 3 PM and as late as 5 PM. The mother works three or four shifts per week. She has the help of the maternal grandparents and other relatives to help care for the children when she is at work.

[26] The mother’s home has appropriate amenities for the children.

[27] The mother has the support of her extended family, many of whom live in or near Aylmer.

iii) The Children

[28] The mother describes L. as a strong-willed child. She needs to know what the plans are, as she can become frustrated if changes take place without sufficient warning. She likes to be independent.

[29] C. is described as more outgoing than L. and is willing to try something new.

[30] Both children attend all day, every day, junior kindergarten at a public school in Aylmer. They are doing well there. Without objection, the mother testified that, according to the children’s teachers, both play well and follow the rules.

[31] The children’s school day begins at 9 AM and ends at 3:20 PM. Because the mother starts work before the children start their school day, she takes them to the school’s before school childcare program. As the school does not yet have two spots for the children in the after school childcare program, the maternal grandparents or another close relative assist the mother by picking the children up from school and caring for them until the mother is able to return home. The mother hopes to have the children enrolled in the after school childcare program as soon as space becomes available.

[32] Neither child has any health issues, though they did have respiratory problems when they were younger. Both children have been taking speech therapy. According to the mother, they have “come a long way since last year” because of speech therapy and school. They are “easier to understand.”

Divorce

[33] The usual requirements necessary before a divorce may be granted have been met in this case. Accordingly, a divorce order shall issue.

[34] The mother’s name in the marriage certificate was not the same as in the title of proceedings of the application. Therefore, in the adjudicative part of the order, it should note that “… [J.B.], sometimes known as [J.M.B.], who were married at …”

Decision-Making Responsibility and Parenting Time

Father’s Position

[35] The father submits that it is in the children’s best interests that he and the mother share decision-making responsibility and parenting time.

[36] He argues that whatever challenges the parents had in communicating have resolved. The father points to their recent ability to agree upon the important matter of their Christmas 2021 parenting time schedule. He is concerned that, if the mother is given sole decision-making responsibility, it is unlikely she will consult with him about the children. He gives as an example the mother’s decision in September 2021 to enroll the children in public school and the before school childcare program without discussing the matter with him and considering his suggestions.

[37] The father further argues that the children have a strong and loving relationship with both parents. He was a devoted and involved parent before the separation and wants to resume this role again. The reason he has had limited time with the children since the separation is because of the mother’s unilateral removal of the children from the matrimonial home in an act of self-help. He argues that this act of self-help should not be condoned by the court.[^1]

[38] Under the Carey J. Order and the Mitrow J. Order, the children are in the father’s care for all, or part of, 11 days each month. He submits that a workable 2-2-3 plan can be put into place.

Mother’s Position

[39] The mother submits that the best interests of the children require her to have sole decision-making responsibility and that there be a very specific parenting time schedule for the father.

[40] The mother argues that she has been the primary caregiver of the children throughout their lives. Since separating more than three and a half years ago, the children have been in her care. She also claims that family violence inflicted on her by the father, and that has affected her, make it very difficult for her to communicate effectively with him.

[41] The mother also argues that the parenting time schedule must be very specific. The father misinterpreted the Carey J. Order for a number of months and would unilaterally overhold the children. It took a further court order to resolve this issue.

Legal Considerations

[42] When making a parenting order under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), the court must consider only the best interests of the children: Divorce Act s. 16(2).

[43] The primary consideration and factors to be considered when determining best interests are set out at Divorce Act s. 16(2), (3) and (4) as follows:

Primary consideration

16(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.

[44] When allocating parenting time, the court is required to give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child: Divorce Act s. 16(6).

[45] When the primary consideration and factors are assessed, it is clear that the Divorce Act requires the court to consider all of the children’s needs and circumstances, from the children’s perspective: see Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (SCC), at paras. 69 and 143; see also E.M.B. v. M.F.B., 2021 ONSC 4264, at paras. 62-63.

[46] Maximum parenting time does not necessarily mean equal parenting time: Knapp v. Knapp, 2021 ONCA 305, at para. 34; and Rigillo v. Rigillo, 2019 ONCA 647, at para. 13.

Best Interests Considerations

[47] The parties concentrated their evidence and submissions on a few of the best interests considerations. These will be addressed. However, it is important and necessary for a full appreciation of the children’s needs and circumstances when determining what parenting order is in their best interests to consider all of the s. 16 factors and the primary consideration.

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

[48] Both L. and C. are almost five years old and attend junior kindergarten. Their stage of development can be described as preschoolers. Both are described as developing as expected. According to the mother, while both children are outgoing, C. is a little more so than L. L. finds comfort in her routines and knowing what to expect.

[49] As they just started school this year, their social circle is expanding to include their classmates, teachers and before school childcare providers.

[50] Once the Mitrow J. Order was made, the children have had a stable and predictable parenting time schedule with their parents. Neither parent provided evidence that this schedule or the transitions cause any concern for either child’s behaviour.

(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

[51] Both children have a strong and positive relationship with their father and mother.

[52] The children have been observed to be very excited to see their father and enjoy the time they spend with him. He engages them in a variety of experiences appropriate for their age. The photography brief (Ex. #10) shows children who are happy and comfortable while in their father’s care and participating in different activities.

[53] The same can be said of the children’s relationship with their mother. The photograph brief (Ex. #32) contains photographs showing the children to be very happy and comfortable in the home and care of the mother. The mother has the support of her extended family and this has allowed the children to develop a close relationship with them, especially the maternal grandparents.

[54] There is evidence that, when in distress, the children look to their mother for comfort.

[55] The children’s maternal grandparents have provided support to the mother and children, including caring for them when needed. Sadly, the children will not know their paternal grandparents as they are both deceased.

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

[56] Both parties appear willing to support the other’s relationship with the children.

[57] Neither party led evidence that the other tried to influence either child against the other.

[58] The father acknowledges that the mother is “a very good mother. She provides for the children …”

[59] The father wants to be involved in the care and upbringing of the children in a manner equal to that of the mother. As set out in her position, she wants to limit the father’s role in decision-making and parenting time. Her request is grounded in her experience with the father’s temper and family violence. She experienced his temper and family violence when she asserted herself or she, or something, displeased the father. She is concerned about potential risk to both children as they develop their own sense of independence. If they challenge the father, he might respond to them with violence.

[60] The evidence does not disclose that the father has deliberately directed his anger towards either child. However, they were exposed to some of his outbursts.

(d) the history of care of the child

[61] The mother has been the primary caregiver of the children both before and after the parties separated. I accept the mother’s evidence that while the parties lived together, she was primarily responsible for looking after the children. The father did provide some help, but it was dependent upon his work schedule and his need for rest or sleep, so that he could be ready for work.

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

[62] There is no evidence of either child’s views or preferences.

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

[63] Both parties would have preferred the children to attend a Catholic school. The only reason they did not is the Catholic school near the mother’s home did not have a before or after childcare program.

(g) any plans for the child’s care

[64] The father’s plan is to continue to live in his home. No one else lives there with him. He intends not to look for employment until May 2022. He will then look to return to work “in some capacity.”

[65] He proposes that the children have contact with his extended family, though who these people might be was not detailed in his evidence.

[66] The mother’s plan is to live in her home with the children. No other adult is expected to live there with her. She will continue to work and have the support of her extended family to assist her with the children’s care when needed. Her plan is that the children continue to attend school in Aylmer. She proposes that, subject to pandemic restrictions, the children have contact with extended family and friends.

[67] Both parents want the children to have a positive relationship with the other parent.

(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

[68] The father and the mother have the ability and are willing to care for and meet the needs of the children.

[69] The mother has demonstrated her ability and willingness to care for the children throughout their lives. She endured and met the challenge of caring for twins with modest support from the father while they were quite young. She arranged for their schooling and their medical needs. She is meeting all of their needs.

[70] The father also demonstrated his ability and willingness to care for the children. He has taken every opportunity available to him to have the children in his care. However, he has created some uncomfortable situations for the children because of his angry outbursts. His behaviour on those occasions was not consistent with him understanding or meeting the children’s needs not to be exposed to adult conflict.

(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

[71] The parties have had difficulty communicating and cooperating effectively on matters pertaining to the children. For many months, the father assumed his interpretation of the Carey J. Order was correct and acted unilaterally in keeping the children, as he thought he was entitled. He did not appear to consider the mother’s view or fairly communicate his plans. She was required to bring the matter before court for a determination, a difficult challenge in itself during the Covid restrictions on court time.

[72] The email exchanges filed in evidence demonstrate the ongoing conflict regarding parenting time returns, stroller exchanges and the sharing of work schedules, particularly by the father. The father provided little feedback on his care of the children when asked by the mother. His responses were vague, for example: “they are great.” This was not helpful to the mother in understanding the children’s needs.

[73] The mother’s evidence, which I accept, is that she finds communicating with the father makes her anxious because of their history.

[74] At present, they communicate by email.

[75] Most recently, however, the parties were able to agree on the Christmas 2021 parenting time through an exchange of emails.

[76] The father wants to have more cooperative communication with the mother. He does not seem to appreciate or acknowledge how some of his behaviour has affected the mother’s ability to do so.

(j) family violence

[77] The father submits that he has not engaged in family violence. In support of this, he argues that:

1. The mother never alleged that there was physical violence or targeting of the children in any manner.[^2]

2. The evidence of their Facebook Messenger communication in the last weeks before the separation demonstrates the mother was able to advocate for herself. The communication does not show that there was strife or conflict between them.

3. The mother went to a concert 13 days before separation, while leaving the children with the father. This is not consistent with the mother being afraid of the father.

4. The mother spent several hours removing her belongings from the matrimonial home while he was at work. This demonstrates she did not feel pressure to leave in a hurry.

5. The mother never called the police or the Children's Aid Society.

[78] These submissions require a consideration of what is meant by family violence under the Divorce Act.

[79] The Divorce Act s. 2(1) provides a definition of family violence as follows:

… any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property;

[80] This definition of family violence includes behaviour that is used by one family member to impose coercive control and instill fear and humiliation in another family member. Coercively controlling behaviour can occur with or without physical violence.

[81] Family violence also includes circumstances, whether it is a single act or a series of acts forming a pattern of violence, where one person is unable or unwilling to manage conflict or anger in a particular situation.

Credibility Assessment

[82] The parties often had different versions or perspectives of events that the mother claims constitute family violence.

[83] Where there is a conflict in the evidence related to these incidents, I generally accept the mother’s evidence over that of the father.

[84] The father’s evidence was often vague, and he deflected responsibility from himself. At one point, he said he could not recall if he called the mother demeaning and hurtful names. At other points, he denied doing so. He minimized certain events or encounters and did not seem to appreciate the effect of his behaviour on the mother or the children. He was not forthcoming about his employment status. He sent shift calendars to the mother while she was preparing the parenting time schedule, even though he was not actually attending work.

[85] I do not wish to suggest that I reject all of the father’s evidence dealing with family violence that he gave. A court may accept none, part, or all of a witness’ evidence, and may attach different weight to different parts of the witness’ evidence.

[86] In contrast, I find that the mother’s evidence was detailed. Some of her evidence was corroborated by contemporaneously written emails or letters. She readily acknowledged not following the Carey J. Order when she enrolled the children in public school without communication with the father. She also acknowledged the Facebook exchange (Ex. #35) did not reveal conflict or an inability to communicate about day-to-day matters.

Finding with Respect to Family Violence

[87] I find that the father did engage in family violence by reason of behaviour that was consistent with his inability to manage conflict or control his anger. Examples of the many incidents given in evidence follow.

[88] Name calling: I accept the mother’s evidence that, on a number of occasions and in anger, the father would call the mother profane and demeaning names. I do not accept the father’s denials. At times, he was not responsive to the questions put to him. When pressed in cross-examination, the father, in some instances, could not remember or denied the name calling and in other instances said that he never said those words directly to the mother.

[89] “Sometimes I wish you were dead.”: on the Sunday night before the twins’ first birthday, the mother was in the kitchen making supper and snacks for the party. The father walked into the kitchen from his office. He saw a piece of paint had been chipped off the wall. He spoke to the mother about this, including telling her to be more careful and that “sometimes I wish you were dead.” This scared the mother because he said it so calmly. She felt shocked and hurt. When she asked him why he said that, the father said it was “to hurt your feelings.” Apparently, she had done something previously that caused his feelings to be hurt. This statement by the father had such an effect on the mother that she made reference to it when, in her email to the father of April 20, 2018, she rebuffed his request that they try and reconcile.

[90] Mother’s Day 2017: the week before Mother’s Day 2017, the father had the week off. During that week, he wanted to replace trim in the main living room area in the home. To do this, furniture had to be moved. The father would need to use an air compressor and leave an outside door propped open. The mother said that she would take the children to the maternal grandparents’ home and stay overnight. She intended to leave when the children went down for their nap, so they could sleep in the car. This plan upset the father. He started screaming and swearing at the mother. He said he was working on the home without any help from her. The mother felt threatened. He said he would not buy her a Mother’s Day gift. After saying this, he just stopped and left the house. The mother then hurriedly gathered what she needed and took the children to the maternal grandparents’ home. She returned the next day to the father’s attempts to make up.

[91] Grouting incident: while pregnant and feeling clumsy, the mother dropped a jar of antipasto and it broke on the kitchen floor. The father reacted by swearing and getting angry. His concern was that oil from the jar would get into the grout. He pushed the mother out of the way and, in anger, cleaned the grout.

[92] First bath incident: the father wanted to take pictures of the children’s first bath. This event happened in the second week of January 2017. As he was taking pictures, he yelled at the mother that she was ruining the pictures because she was not turning to look at the camera. Somehow, the photos became deleted. The father became upset. After the children were settled, the mother went into the father’s office where he was on his computer. He got up out of his chair, got up very close to the mother’s face and swore at her because the pictures were gone. The mother was so afraid that she collapsed. She fell to the floor. He then stepped over the mother and went back into his office. Eventually, he came back out and helped the mother get up and sit on a couch.

[93] Duvet incident: one weekend, the mother and father were putting a duvet cover on a duvet. As they were putting the duvet cover on, they heard it tear. The mother told the father to be careful. In response, the father began to tear the duvet cover “more and more.” He was angry and swore at the mother. He said it was her fault. He insisted that she go right away and buy a new duvet cover. The mother was scared. She left immediately to buy the duvet cover.

[94] Friend’s car in the driveway incident: a friend of the mother’s came from out of town. She became sick with a virus, so her husband came and took her home. The friend asked if she could leave her car in the parties’ driveway. The father did not want it there. He wanted it parked at the parking lot where he worked. Eventually, he agreed and the car was parked in their driveway. The car was a standard shift, which the mother did not know how to use. The father had to move the car out of the way every day. That same week the father became ill, so ill, the mother took him to the hospital. The maternal grandmother cared for the children while she took the father to the hospital. While driving the father to the hospital, he yelled so much that the mother had to pull over. He said it was her fault he got sick because he had to get into the friend’s car and move it. When she said that she was too upset to drive, he stopped. But again, on the way home, he kept saying it was her fault and called her stupid and swore at her.

[95] Baby bottle and fist incident: when the children were young and were being fed with baby bottles, one day they did so, sitting on their L-shaped couch. The father was on one side and the mother on the other. They argued. The father threw the baby bottle he was using to feed the child in his care at the mother. It missed her. He then went to where the mother was sitting, holding the child in one hand by the head and neck. He stood over the mother with a cocked fist pointed at her. She said, “do it then.” He stopped but was swearing and yelling. The mother feared he was going to hit her.

[96] Trim incident: this incident happened when the mother was on maternity leave. It was a weekend. She and the children were in the kitchen. The mother wanted to go upstairs. In doing so, she moved the dog crate that was on wheels. It bumped into the doorframe and chipped a piece off of it. When she saw this, she began to panic and cried. She was terrified. Nonetheless, she went and told the father what happened. He became angry – swearing and yelling. He pulled the trim off the wall and threw it down. It landed a few feet from C., who then started to cry. The father replaced the trim within 30 minutes.

[97] The dentist incident: after the children’s first dental appointment, the father was upset, having to do with the cost and insurance coverage. He was loud and angry with the dentist’s receptionist. The dentist came to see what was happening. The dentist told the receptionist to give the father back the money because it was not worth it. The children saw this. On their way to the car, the children were upset. The mother tried to hold their hands. That is not what they wanted. They both wanted to be held by her.

[98] It is on the basis of these and the other incidents given in evidence by the mother that give rise to the court’s concern about the appropriateness of making a shared decision-making order. These incidents reflect a pattern of behavior whereby the father is not able to control his temper or manage conflict, which in turn constitutes a pattern of family violence perpetrated by the father in the parties’ relationship.

[99] In Nderitu v. Kamoji, 2017 ONSC 2617, at para. 52, the court set out a helpful summary of the guidelines found in the jurisprudence when a court is considering whether a joint custodial regime (now shared or joint decision-making responsibility) is in a child’s best interests, as follows:

(a) the parties need not consent to an order for joint custody, but before ordering joint custody the court must have some evidence that the parties are able to communicate effectively with each other; (Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), 2005 CarswellOnt 266 (Ont. C.A.));

(b) simply relying on allegations of conflict will be insufficient to preclude a joint custody order. The analysis must be what is the nature, extent and frequency of conflict such of [sic] conflict impacts are as likely to impact on the wellbeing of the child if the evidence is that the parties have been able to shelter the child from the conflict reasonably well and put the child's interest ahead of their own, an order for joint custody may be appropriate. (Ladisa v. Ladisa, 2005 CanLII 1627 (ON CA), 2005 CarswellOnt 268 (Ont. C.A.));

(c) one parent cannot create problems with the other parent then claim custody on the basis of a lack of cooperation (Lawson v. Lawson, 2006 CanLII 26573 (ON CA), 2006 CarswellOnt 4789 (Ont. C.A.));

(d) where it is necessary to preserve the balance of power between the parties, particularly cases were [sic] both parties are caring and competent parents but one party has been primarily responsible for the conflict, joint custody versus sole custody may be appropriate. (Khairzad v. Macfarlane, 2015 ONSC 7148 (Ont. S.C.J.) and Fraser v. Fraser, 2016 ONSC 4720 (Ont. S.C.J.)); and,

(e) in determining whether a reasonable measure of communication and cooperation is in place and is achievable in the future the court must consider the source of the conflict, consider whether one parent is creating the conflict and engaging in reasonable conduct, impeding access, marginalizing the other parent or by other means and then claim sole custody of the basis of lack of cooperation communication. (Khairzad v. Macfarlane, 2015 ONSC 7148 (Ont. S.C.J.)).

[100] In Warcop v. Warcop, 2009 CanLII 6423 (ON SC), [2009] O.J. No. 638 (Ont. S.C.J.), at para. 94, the court also addressed the nature of the communication that would indicate whether it would be in a child’s best interests to make an order for joint custody, as follows:

The focus is simply on the best interests of the child. The best interests of the child will obviously not be fostered if the parents are unable to communicate and cooperate in making decisions that affect the child. However, a standard of perfection is not required, and is obviously not achievable. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. In making this assessment, the Court must be governed by the evidence that has been presented as to the communication and cooperation between the parties to date; the mechanisms that are in place to ensure that it will continue; and the assessment of the judge as to the capabilities of the parties to do so in the future.

[101] Despite Ms. Camarra’s able advocacy on behalf of the father, and taking into account the primary consideration and the evidence related to the best interests factors, I find that it is in the best interests of the children that the mother have decision-making responsibility with respect to the children. This is not a case where the evidence supports a finding that the parties have a history of being able to communicate effectively and cooperatively on significant matters pertaining to the children. The mother has objectively reasonable fear of the father’s anger and ability to manage conflict. Decision-making for the children should not take place in an environment of intimidation and ongoing fear.

[102] The father argues that the mother’s fear is not a real one. He asks the court to review the Facebook Messenger exchange between the parties that started February 2, 2018 and ended March 23, 2018. It was polite in tone and an informative exchange throughout. At first consideration, there is some merit in the father’s argument. The mother does not appear afraid or unable to communicate about day-to-day matters with the father. However, the mother provided in evidence the Facebook Messenger exchange message that immediately preceded the ones relied upon by the father. In this message, she expresses her concern that the father seems to want to make her feel bad for “doing it wrong.” There is also the letter the mother left the father when she moved from the matrimonial home. She wrote, in part:

I chose to leave without discussion because honestly, I am afraid of how you could react to the news given your reactions in the past to much smaller matters.

[103] I find that the mother engaging in the polite Facebook Messenger messages in the context of the father’s past behaviour does not negate the fear or concern she had.

[104] The father also argues that the agreement reached for Christmas 2021 parenting time, as set out in Ex. #42, shows that polite and constructive email communication can lead to joint decisions being made. This exchange does demonstrate that accommodation can be reached. But it is only one instance. Again, context matters. The different interpretations of the Carey J. Order caused months of conflict and uncertainty for the parties. It took a further court order to resolve the matter. The resolution was not accomplished by polite and constructive communication between the parties.

[105] This is not to say that the father should not have input into decisions concerning the children. He loves them and is concerned for their welfare. He has advice and experience to share with the mother regarding important decisions that will need to be made about the children. This can be accomplished by requiring the mother to consult with the father before exercising her decision-making responsibility. She will be required to inform the father of the issue at hand, information she has obtained or will obtain relevant to that issue, her proposed solution or decision and solicit the father’s advice. He shall be given a reasonable opportunity to provide his input before the mother makes the final decision. This communication is to be in writing unless the parties mutually arrange otherwise.

[106] I accept the mother’s evidence explaining why she did not inform the father about registering the children in school in a timely fashion or in accordance with the Carey J. Order. With a multidirectional order in place, it is not expected that this breach will happen again.

Parenting Time

[107] The father requests a 2-2-3 parenting time schedule.

[108] The mother asks that the father’s parenting time continue in a similar fashion as now takes place under the Carey J. Order and the Mitrow J. Order.

[109] I am not satisfied that the 2-2-3 parenting time schedule throughout the year is in the children’s best interests.

[110] The children have been in the mother’s primary care since the parties separated. Both parties agree that the children are doing well under the current schedule.

[111] The father submits that, as he now has the children 11 full or part days each month, his proposal adds only 4 more days. This proposal is not a child-focused one. There are other ways to increase the father’s time with the children that will not be as disruptive and will be in their best interests.

[112] I find that the parenting time schedule that will be in the children’s best interests follows. I have considered the draft orders filed by the parties at the start of the trial.

[113] The children shall reside primarily in the care of the mother.

[114] I find that the best interests of the children will be met if the father’s parenting time schedule is as follows:

1. The father shall have parenting time with the children on alternate weekends from Friday after school until Sunday at 7 PM.

2. If there is a school long weekend when the children are to be in the father’s care, and that long weekend includes Friday, the father’s parenting time will start at the end of school on Thursday. If the long weekend includes Monday, then, subject to para. 6 below, the father’s parenting time will end at 7 PM on Monday.

3. Every Wednesday from after school until the start of school on Thursday morning.

4. The father shall be responsible for picking up and returning the children for all of his parenting time.

5. If the parenting time schedule starts or concludes when the children are not in school, then, at the beginning or the conclusion of the father’s parenting time, he shall pick up or return the children to the mother at her residence at the designated time.

6. During the months of July and August each year, the children shall be in the care of the parents on a week-about basis. The exchanges shall take place on Friday evenings at 5 PM. The father will pick up the children from the mother’s residence at the beginning of his parenting time and return them there at the end of his parenting time each week. Unless the parties agree otherwise, the start of the summer week-about parenting time schedule shall begin on the first Friday of July and end on the last Friday of August. In order that the children are well settled for the start of school each September, they shall be in the mother’s care on Labour Day from noon, if that long weekend happens to be the father’s regularly scheduled alternate weekend.

7. The parties shall divide the children’s March break from school, Easter long weekend and Christmas holidays from school equally. If they are unable to agree on the equal sharing of parenting time during these periods, then:

a) during the March break from school, the children shall be in the mother’s care from Friday at the end of school until Wednesday at noon. The children shall be in the father’s care from Wednesday at noon until Sunday at 7 PM;

b) during the Easter holiday: in even-numbered years, the children shall be in the father’s care from Thursday after school until Saturday at 7 PM. The children shall be in the mother’s care from Saturday at 7 PM. In odd-numbered years, the children shall be in the mother’s care from Thursday after school until Saturday at 7 PM. The children shall be in the father’s care from Saturday at 7 PM until Monday at 7 PM;

c) during the Christmas holidays: in even-numbered years, the children shall be with the mother from December 24 at 11 AM until December 25 at 3 PM and with the father from December 25 at 3 PM until December 26 at 7 PM and with the father from December 31 at 11 AM until New Year’s Day at 1 PM. In odd-numbered years, this schedule will be reversed. As stated above, the balance of the Christmas break from school shall be shared equally;

d) Mother’s Day – if the children are not otherwise in the mother’s care on Mother’s Day, they shall be in her care on that day from Saturday at 6 PM; and

e) Father’s Day – if the children are not otherwise in the father’s care on Father’s Day, they shall be in his care on that day from Saturday at 6 PM until Sunday at 7 PM.

8. Halloween shall be shared by the parties as follows:

a) the father shall have the children on Halloween in odd-numbered years from the end of school until 8 PM;

b) the mother shall have the children on Halloween in even-numbered years; and

c) the parent who has the children for Halloween will be responsible for obtaining and paying for the children’s costumes.

9. The parties may arrange for such further and other parenting time as they may agree upon from time-to-time in writing.

10.Neither party shall book activities for the children that fall on the time that the children are to be in the care of the other parent unless the other parent agrees in writing in advance.

11.The parents are to notify the other if the children need emergency care while in their respective care. Each will notify the other immediately.

12.The father is entitled to access to information directly from third party service providers, such as schools and healthcare providers or others involved with the children. Each parent will execute such authorizations and directions as are necessary to allow the other parent to access this information regarding the children.

13.Both parties shall have the right to participate in activities at the children’s school and attend parent-teacher interviews. At the children’s school, both parents shall be designated as contacts in the event of an emergency involving the children or either of them, with the mother being the primary or first contact.

14.The mother shall also be listed as the primary contact person with the children’s healthcare providers or any institution providing extracurricular activities or other services and the father shall be listed as the secondary contact person.

15.Neither party shall disparage the other to or in front of the children or allow third parties to do so.

16.Neither party shall allow the children to be exposed to adult conflict or family violence.

17.The mother shall be able to attend all appointments for the children without the father present. The father shall be entitled to the name, location, contact information and recommendations made at the appointment. He is not to attend the scheduled appointments unless otherwise agreed in advance and in writing by the mother. The mother shall give the father at least seven days written notice of any healthcare appointments for the children and, in the case of an emergency medical appointment, such written notice shall be given as soon as the appointment is made or emergency medical care is needed for either child.

18.The father will not cut or allow others to cut the children’s hair, allow piercings or tattoos or any other permanent or temporary changes to appearance while the children are in his care without the prior written consent of the mother.

19.Neither parent shall use physical discipline of any kind on the children or either of them at any time during their parenting time with the children and they shall refrain from raising their voice and yelling while the children are in their care.

20.The mother shall be entitled to obtain and retain in her possession the children’s government-issued documents and provide them to the father on an as needed basis. The father shall provide such consents or approvals as are necessary for the mother to obtain these government-issued documents.

21.Neither party shall take any action to change the name or names of the children under the Change of Name Act, R.S.O. 1990, c. C.7, or by usage by registering the children under a different name under the Education Act, R.S.O. 1990, c. E.2.

22. If either parent intends to travel with the children outside of Canada during their respective parenting time, they shall provide the other with the itinerary and a means to communicate with them while they are out of the country. The non-travelling parent shall provide such consents as may be required to allow the parent to travel outside of the country.

23.The parties shall each be responsible for the day-to-day decisions affecting the welfare of the children while in their care.

24.The parties shall provide the other with their email addresses, current address, and telephone number where they can be reached at all times and provide each other with timely updates in the event of a change.

25.If the father’s new employment interferes with his parenting time, then absent agreement by the parties, a motion to change may be brought by either party, limited to the determination of whether there has been a material change in circumstances and, if so, the changes, if any, to be made to the father’s parenting time having regard to his new employment.

Child Support

[115] The parties agree that:

1. the father’s income for child support purposes under the Federal Child Support Guidelines, (SOR/97-175, as am.) is $96,009.70. This is based upon the father’s 2020 employment income of $85,057.87, interest and other investment income in 2020 of $12,596.01 and 2020 annual union dues of $1,644; and

2. the table amount of child support for the two children based upon the father’s income of $96,009.70 is $1,423 per month.

[116] The start date for child support will be January 1, 2022 and will be payable on the first day of each month thereafter.

[117] The mother’s 2020 income for child support purposes was $46,903. This is the amount to be used should there be a s. 7 claim before any annual disclosure and readjustments of child support calculations in the future. On this basis, the father shall pay 67.2 percent and the mother 32.8 percent of any s. 7 expenses.

[118] If the father obtains employment, he shall advise the mother of the particulars of his new employment within 48 hours and shall include any offer of employment, setting out the terms of the employment, as well as the hours of employment.

[119] The parties agree that there is no child support owing by the father to the mother to December 31, 2021.

[120] The parties shall maintain the children as beneficiaries under their respective health, medical and dental coverage through their employment.

[121] In order to secure the father’s child support obligation, he shall maintain such life insurance as is available to him through his employment or resignation agreement and shall provide particulars and proof of this coverage to the mother as and when requested by her in writing.

Spousal Support

[122] The parties agree that the mother is entitled to spousal support for the ten-month period beginning March 2018 to and including December 2018. During this period, immediately following the parties’ separation, the mother was not working and was the primary caregiver of the children. I agree that the mother is entitled to support for that period on a needs and compensatory basis.

[123] The parties also agree that any spousal support ordered for this ten-month period be a lump sum payment.

[124] The parties differ as to the amount of the lump sum to be paid. The mother asks for $5,000. The father submits that the appropriate amount is $440. The requests made by both parties were based upon the DivorceMate Software Spousal Support Advisory Guideline calculations. The calculations used the parties’ respective 2018 incomes. According to the “with child” formula, the range of spousal support is: low − $44 per month; mid − $379 per month; and high − $751 per month. These calculations are made on the basis of the spousal support being tax deductible by the payor and included in the support recipient’s income for income tax purposes. The lump sum payment sought by both parties is not to be taxable in the hands of the recipient, nor deductible by the payor.

[125] Neither party offered a principled reason for determining where in the range of the formula spousal support should be based.

[126] According to the DivorceMate calculation, the midpoint of monthly spousal support of $379 would have provided an after-tax cost to the father of $245 per month (or $2,450 for the 10 months) and a benefit to the mother of $323 per month (or $3,230 for the 10 months). It would have provided the father with 43 percent of the parties’ net disposable income and 57 percent to the mother. Having regard to these considerations, I find that the appropriate amount of lump sum spousal support to be paid on account of the ten-month period is an amount that shares the midpoint benefit and the cost to the parties. This amount rounded is $2,750.

Equalization of Net Family Property

[127] The mother and father, who were married, separated after 45 months of cohabitation.

[128] The parties agree that the full or presumptive equalization payment calculated under Family Law Act, R.S.O. 1990, c. F.3 s. 5(1) is $211,000.

[129] The father argues that the equalization payment to the mother should be less than the presumptive amount. He relies upon Family Law Act s. 5(6), which is formulated as follows:

Variation of share

5(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

[130] Section 5(7) explains the purpose and intent of the equalization scheme under the Act:

Purpose

5(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6).

[131] The father submits that it would be unconscionable to order the presumptive equalization payment because this amount would be disproportionately large in relation to the period of their cohabitation, which was less than five years: s. 5(6)(e).

[132] The father further argues that the mother will receive a windfall because he is not able to deduct the value of the matrimonial home, which he owned at the date of marriage.

[133] According to the father, the appropriate payment should be calculated by prorating the presumptive equalization payment to the period of cohabitation (i.e. 45 months / 60 months). This would result in a payment of $158,250.

[134] The mother submits that the presumptive equalization payment should be ordered. If the father wanted to be able to deduct the value of the matrimonial home on the date of marriage, he could have entered into a marriage contract with the mother. He knew this could be done as the father entered into a marriage contract with his former spouse in which this clause was included. She also argues that the test for unconscionability has not been met in this case.

[135] The court’s discretion to make an order for an unequal division of net family property is limited. The court must find, in the circumstances of this case,

a) that the parties cohabited for less than five years;

b) that requiring payment of the presumptive amount would be unconscionable; and

c) that the presumptive amount is disproportionately large in relation to the length of cohabitation.

[136] This is a case where the parties cohabited for less than five years.

[137] The threshold for unconscionability under s. 5(6) is high. It is not satisfied by a finding of unfairness. The Family Law Act creates a scheme for property sharing upon marriage breakdown that is intended to promote predictability and thereby discourage litigation. If courts were to deviate from the scheme of the Act wherever it gave rise to an unfair result, this would have the undesirable effect of encouraging parties to litigate their claims: see Ward v. Ward, 2012 ONCA 462, at para. 25.

[138] To cross the unconscionability threshold, an equal division of net family property in the circumstances must “shock the conscience of the court.”: Serra v. Serra, 2009 ONCA 105, at paras. 47 and 48.

[139] In considering whether unconscionability exists in this case, I take into account the following:

• While the parties cohabited from July 2014 to March 2018, there was a sharing of household and financial responsibility according to their abilities, with the mother assuming primary responsibility for the care of their very young and dependent twin children.

• The matrimonial home was acquired by the father a number of years before the marriage.

• There were only cosmetic improvements to the home during the marriage that were undertaken and paid for primarily by the father. The costs of these improvements were not detailed in the evidence. The wife did contribute approximately $2,000 for a refrigerator.

• The father paid for the family expenses except groceries, the cost of maintaining and operating the van driven by the mother, the cost of her cellphone and clothes, which were paid by the mother.

• Day-to-day care of the inside of the home rested with the mother, while the outside maintenance was the primary responsibility of the father.

• The parties cohabited more than three- and one-half years.

• If the value of the matrimonial home was deducted when calculating the presumptive amount of the equalization payment, it would be approximately $75,000.

• The difference between the presumptive payment and proportional one is $52,750.

[140] In all of the circumstances, I do not find that the presumptive equalization payment of $211,000 is unconscionable, as the meaning of that term is explained in Serra. The presumptive equalization payment does not “shock the conscience” of the court. The jurisprudence is clear that circumstances which are "unfair", "harsh" or "unjust" alone do not meet the test: Serra, supra, at para. 47.

[141] While the result in this case may seem unfair, the matrimonial home is treated differently than other assets under the Family Law Act. In this case, there is no unconscionability in applying the statutory scheme: Linov v. Williams, 2007 CarswellOnt 1463, at para. 36.

[142] As well, I do not find that the presumptive equalization payment is disproportionately large having regard to the period of cohabitation by the parties of 45 months and the proportional amount proposed by the father.

[143] The father shall pay to the mother an equalization payment of $211,000.

Order

[144] I make the following order:

Divorce

1. A divorce order shall issue. In the adjudicative part of the order, it shall state that “… [J.B.], sometimes known as [J.M.B.], who were married at …”

Parenting

A. Decision-making Responsibility

2. The mother shall have decision-making responsibility for the children.

3. The mother shall inform the father of significant decisions about a child’s wellbeing that she is required to make, information she has obtained or will obtain relevant to that decision, her proposed decision, solicit and meaningfully consider the father’s advice. He shall be given a reasonable opportunity, as determined by the mother, to provide his advice before the mother makes and informs the father of her final decision. This communication is to be in writing unless the parties mutually arrange otherwise.

4. The children shall reside primarily in the care of the mother.

B. The Father’s Parenting Time

5. The father’s parenting time and other incidents of parenting shall be as set out in para. 114 of these reasons.

Child Support

6. Commencing on the first day of January 2022 and on the first day of each subsequent month, the father shall pay child support to the mother for the two children in the amount of $1,423.00 per month based upon his annual income in 2020 of $96,009.70 and pursuant to the Federal Child Support Guidelines s. 3(1)(a).

7. The father does not owe any child support to December 31, 2021.

8. The mother’s 2020 income for child support purposes was $46,903. This is the amount to be used should there be a s. 7 claim before any annual disclosure and readjustments of child support calculations in the future. On this basis, the father shall pay 67.2 percent and the mother 32.8 percent of any s. 7 expenses.

9. The parties shall maintain the children as beneficiaries under their respective health, medical and dental coverage through their employment or resignation agreement.

Life Insurance

10. In order to secure the father’s child support obligation, he shall maintain such life insurance as is available to him through his employment or resignation agreement and shall provide particulars and proof of this coverage to the mother as and when requested by her in writing.

Spousal Support

11. The father shall pay lump sum spousal support to the mother in the amount of $2,750.

Equalization of Net Family Property

12. The father shall pay to the mother an equalization payment of $211,000.

Ongoing Disclosure

13. The father and mother will provide ongoing income information in accordance with Child Support Guidelines s. 25.

[145] The parties are urged to resolve the issue of costs. If they are not able to do so, the mother may make written submissions within ten days of the release of these reasons. The father shall have ten days after the receipt of the mother’s submissions to respond. The submissions shall be no more than 3 pages, double-spaced and a minimum of 12-point font, together with a bill of costs and any offers to settle. The party opposing a claim for costs shall include in their submissions documentation showing their own fees and expenses: see Family Law Rules, O. Reg. 114/99 r. 24(12.2).

[146] I wish to commend counsel for the professional and sensitive manner in which this case was presented.

“Justice B. Tobin”

Justice B. Tobin

Released: January 4, 2022

COURT FILE NO.: FC1345/18

DATE: January 4, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

M.N.B.

Applicant

- and -

J.M.B.

Respondent

REASONS FOR JUDGMENT

TOBIN J.

Released: January 4, 2022

[^1]: This argument would likely gain purchase at the return of the motion seeking a temporary order, especially if brought promptly after the act of self-help, not as happened here, months after the event happened.

[^2]: This argument assumes a very narrow and outdated view of what can constitute family violence. As well, it fails to appreciate the effect exposure to family violence can have on children, even infants and toddlers.