COURT FILE NO.: FS-19-248
DATE: 20220308
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sean Douglas Waterhouse
Applicant
– and –
Amy Rebecka Waterhouse
Respondent
Nolan Wilson, for the Applicant
Danica E. Maslov, for the Respondent
HEARD: February 11, 2022
The Honourable R. J. harper
costs endorsement
Issue at Trial
a. Divorce
b. Parenting Decision Making
c. Parenting Time
d. Child Support
Background
[2] The Applicant, Sean Douglas Waterhouse (Sean), was born September 9, 1978. He is presently 43 years of age.
[3] The Respondent, Amy Rebecka Waterhouse (Amy), was born on January 2, 1978. She is presently 45 years of age.
[4] Sean and Amy started to cohabitate in 2002 and were married on August 21, 2004.
[5] They had two children, namely, Tyler Joseph Waterhouse (Tyler), born September 20, 2006. He will be 15 next week. The youngest child is Dennis Reid Waterhouse (Reid). He was born on November 23, 2012. He is almost 9 years of age.
[6] Sean and Amy separated on or about November 24, 2019.
The Allegations of Domestic Violence
[7] Much of the trial was taken up by evidence of Amy’s allegations of incidents of verbal, emotional and physical abuse.
[8] In my Reasons for Judgment, I found that Amy had not proven any of the allegations of abuse. I found that she had acted in bad faith in the manner in which she conducted the litigation. She aligned herself with professionals who were, unfortunately, willing to advance her allegations and adopt without any question the view that the children needed help to protect themselves from a violent father.
[9] The combination of a parent who is willing to pursue unfounded allegations and professionals who enable that parent by assisting in misrepresenting the evidence is reprehensible and causes harm to the children and others who are living in the intolerable terror of domestic violence.
[10] In my Judgment, I found that Amy was often evasive and inconsistent in her testimony. She also stuck rigidly to her testimony with respect to certain incidents when it was clearly pointed out by other evidence that she should not.
[11] Amy’s testimony was replete with inconsistencies and a lack of logical flow and coherence.
[12] This trial should have been about evidence that was relevant to all of the factors that a court must be guided by in assessing the primary consideration to the children’s physical, emotional and psychological state, and their security, and stability.
[13] The evidence should have focused on what the children’s needs were given the age and stage of their development.
[14] Unfortunately, the focus of the evidence was the allegations of and denials of domestic violence.
[15] It is significant that Amy had already been cautioned during the conduct of these proceedings. After hearing a contested motion where the only issue was whether parenting time with the father should be expanded by one day, Justice Gambacorta found that the Respondent’s (Amy’s) relied on “scurrilous” and “scandalous” allegations. She also found that her evidence “went far beyond what is acceptable and, as a result, she “exacerbated the conflict”. Justice Gambacorta found that Amy’s conduct, in this regard, amounted to bad faith.
[16] Despite that admonishment by the court, Amy continued her effort to paint Sean as a persistent perpetrator of violence and emotional abuse upon her. She was not successful on this issue. However, she was successful at prolonging the trial and, sadly, at prolonging the turmoil for her children.
[17] In my Judgment, I accepted the report of the OCL. I found it to be thorough. Despite the emphasis placed by Amy on the allegations of domestic violence, she did not dispute the findings nor the recommendations of the OCL report; neither did Sean in any significant way.
[18] In his report at page 10, he states:
Tyler and Reid appear to have developed strong emotional ties to Mr. Waterhouse as well as Ms. Waterhouse. During their interviews, they spoke positively about their parents and expressed closeness to both. Their interaction with Mr. Waterhouse and with Ms. Waterhouse were comfortable, warm and enjoyable. Tyler and Reid’s emotional ties to both parents were also supported by their views and preferences. They stated they would prefer to be able to spend equal time in the care of their mother and their father. If they were not able to be cared for by each parent on a 50-50 bases, they would prefer to reside primarily with their mother and have access to their father more than one evening a week and every other weekend.
The OCL also pointed out that the conflict between the parents remains a major concern. They do not communicate well with each other. They continue to blame each other. Joint decision making regarding the children would likely further their conflicts and may delay important decision-making.
[19] However, in my Judgment, I found that Sean’s parenting plan had certain flaws. He brought in a close friend of his, Justin Bell, to be a part of his plan of caring for his children. This part of his plan came very late in the process. It was only within the last couple of months before this trial started that Mr. Bell came on the scene.
[20] Mr. Bell testified at the trial. I find him to be a credible and straightforward witness. He is well known to the children. He has a daughter of his own that he shares parenting time with his ex-spouse.
[21] He is renting the unfinished basement of Sean’s home but has access to the rest of the home, except for the bedrooms of Sean and his children.
[22] I found that Mr. Bell could be of some assistance to Sean in caring for the children. However, the longevity of this plan is in question.
[23] Sean’s girlfriend, Lisa, also testified. I found that she was a straightforward and credible witness. She testified that she has a good relationship with Sean. The fact that they have taken a “pause” in their romantic part of their relationship does not take away from the fact that she would be able to assist Sean in childcare from time to time.
[24] Sean’s father also testified. He is also available to assist. However, he does not feel that the children need constant care and supervision as the oldest child is 15. I found that Sean’s father is a resource to assist with the children. However, he would be a limited resource given his view of the oldest son being able to carry a larger role than he should have to.
[25] Amy’s mother also testified. I found her to be less than credible. She is extensively aligned with her daughter and her evidence was all too often slanted in order to reflect that alignment instead of truthfully relating events that she may have firsthand knowledge of. She strongly believes that Sean has subjected her daughter to domestic violence. I found that this distorts her perceptions and her testimony.
[26] I found that neither Amy nor her mother are presently in a mindset to be able to maximize the contact and relationship the children have with their father and should have.
[27] After considering all of the evidence at trial, I found that there were no solutions to this case that were without complications. I agreed with many of the recommendations of the OCL. However, I felt that the recommendations did not go far enough.
[28] The most important conclusion that I came to in my Judgment was that both of these parents need to successfully engage in counselling in order to be in a position to put their negative feelings for each other aside to successfully parent their children.
[29] The children need permission from each parent to love and enjoy their time with the other parent. They need parents who learn to communicate in a manner that allows for objective information flow about their children to each parent, and meaningful consultation with the other parent.
[30] Both of these children need stability and certainty in their lives. That can only be achieved if their parents put themselves in a position to set aside their negative feelings about each other as a person and focus only on each other as parents who are valued and involved. In my view, that must be the purpose of the individual counselling that each parent must engage in.
The Law and Analysis
[31] The factors that I must be guided by are set out in rule 24 of the Family Law Rules.
[32] A successful party is presumptively entitled to costs. However, in this case, there is no success for either party that can be measured in relation to the needs and best interest of these children. This is a work in progress in which the parents are tasked with achieving success by making gains in counselling that will allow them to successfully parent the children.
[33] Having said that, rule 24(8) directs the court to consider if either parent acted in bad faith. Like Justice Gambacorta, I do find that Amy acted in bad faith. She prolonged the trial with the allegations of domestic violence that she did not prove.
[34] I have considered all of the factors in rule 24 and I find that Amy has not only disentitled herself to costs, given my findings of bad faith, she has disentitled herself to a cost award and she has exposed herself to paying a portion of Sean’s costs.
[35] Amy seeks costs in the approximate amount of $30,000.00. Sean’s summary of costs set out his request for approximately $15,000.00 for his costs.
[36] After balancing all of the circumstances as set out above and considering the costs that each party was prepared to pay their own lawyers, I make the following order:
a. The Respondent shall pay to the Applicant the sum of $5,000.00, inclusive of fees, disbursements and HST.
b. The costs shall be paid within 30 days.
Justice R.J. Harper
Released: March 8, 2022
COURT FILE NO.: FS-19-248
DATE: 20220308
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sean Douglas Waterhouse
-and-
Amy Rebecka Waterhouse
COSTS ENDORSEMENT
Released: March 8, 2022