COURT FILE NO.: FC-20-670 DATE: 2023/05/03

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

LENORE CORK-LEMAY Applicant – and – MATTHEW LEMAY Respondent

Counsel: D. Larry Segal, for the Applicant Eric Letts, for the Respondent

HEARD: January 16 to 20, and 23 to 27, 2023

REASONS FOR DECISION

Audet J.

[1] This trial was held before me over the course of ten days. The main issue I was required to decide, and which took the better part of this lengthy trial, was the parenting regime that would be best for the parties’ two children, ages 8 and 11. Additional issues to be decided included the equalization of the parties’ net family property as well as child and spousal support.

[2] I have concluded that it was in the children’s best interest to continue to share their time relatively equally between each parent, in accordance with the parenting schedule proposed by the mother. I have also concluded that the children’s best interest required that the decision-making responsibilities be divided between the parties, as described in detail in the multi-directional parenting order set out at the end of this decision.

[3] On the financial issues, I confirmed the parties’ respective child support obligations from January 1, 2020, onward. I also concluded that, despite a strong compensatory entitlement by the mother, the father did not currently have the ability to pay spousal support. Finally, I concluded that that there was no equalization payment was owing by either party.

BACKGROUND

[4] The parties began dating in 2010, moved in together on July 1, 2011, and married on December 18, 2012. They are the biological parents of A.L. who was born in 2014 (now 8) and of E.L. who was born in 2011 (now 11). The children were 5 and 8 years old when their parents separated on November 1, 2019. The father formally moved out of the home on November 13, 2019.

[5] The mother has a child from a prior relationship, O.C., who is currently 15 years old. Throughout the parties’ relationship, O.C. was living primarily with his mother and spending significant parenting time with his father. Since on or about 2021, O.C. is in his mother’s care on weekdays and with his father on weekends during the school year, and he divides his time equally with each of his parents during the summer and other school breaks.

[6] It is not disputed that throughout the parties’ marriage, the mother was a full-time homemaker and did not work outside of the home (with the exception of a brief period of part-time employment at a local Shoppers Drug Mart). As such, she was primarily responsible for the day-to-day care of the children and of the household.

[7] The father, on the other hand, was the family’s main breadwinner. He was forced to retire from the Canadian Forces before the parties’ relationship began due to a car accident. At the time the parties moved in together, the father was already working towards achieving his goal of becoming a pilot and earning his instructor’s licence to become a commercial pilot. The father achieved this goal quickly and, from 2012 on, he was working as a pilot for various companies. At the time of the parties’ separation, he was employed as a commercial pilot with Sunwing.

[8] These legal proceedings were initiated by the mother as a result of very unfortunate events. While the children were in their father’s care during the weekend of May 18, he wrote to the mother informing her that he would keep the children for one more day, at their request. More specifically, he wrote:

“[A.L.] and [E.L.] are having a great time here and have both asked to stay an extra day. Given their expressions to stay longer I'll drop them off at your place Tuesday 3pm.

On the subject, the last time they asked you to stay longer by FaceTime you had told them no because you would miss them too much. This has greatly confused and upset them and said you said you miss them more than dad. They have recently told me a few times and I've mentioned it to you they are expressing they want to be spending more equal time between both their homes and parents. They went on to say they were told by you not to ask for extra time with me as you will miss them too much and they could get "in trouble" for asking in the future. This type of conversation with the children is unacceptable, a form of manipulation and is creating anxiety around access.

Given the above we need to start scheduling access times which are more equal in time. I'm available to have them now and will be in the future when I return to work as I'll be going back part- time to be available to them.”

[9] As it turned out, the father would withhold the children for almost an entire month, refusing to allow any contact between them and their mother. Despite her desperate pleas to the father to return the children home to her, and her ongoing efforts to be allowed to speak with them, the father steadfastly refused to allow any contact.

[10] More specifically, on May 19 the father wrote to the mother to advise that, at the direction of the Children’s Aid Society, she would not be allowed any contact with the children until further notice. He explained that the children had disclosed to him having been subjected to “unacceptable forms of discipline at the hands of their mother”, and that the Children’s Aid Society (“CAS”) was investigating.

[11] After having been denied any contact with the children for nearly two weeks, the mother retained counsel and on May 25, she sought leave to bring an urgent motion before the court. In a letter from the father’s (then) counsel to the mother’s counsel dated May 27, he states:

“This is to confirm that an investigation is underway with respect to your client’s actions towards the children. Mr. Lemay has been in contact with the Children’s Aid Society of Ottawa and he has been told that they have contacted the Ottawa Police as a result of the statements made by the children. Mr. Lemay is waiting to hear from a detective from the Ottawa Police to determine what steps they intend to take with regard to prosecuting Ms. Cork-Lemay’s actions”.

[12] The following is important to note at this juncture. Firstly, the father never bothered speaking to the mother about the children’s alleged disclosure before he contacted the CAS to file a complaint. Secondly, the father never discussed with the mother – not once – during the month he withheld the children, of the particular nature of the children’s alleged disclosure in relation to « unacceptable forms of discipline” by their mother. During the first two weeks after he began withholding the children, the father never responded to the mother’s multiple emails, phone calls and pleas (to him and to both paternal grandparents) for the return of the children or to be allowed to speak to them. He kept her completely in the dark, totally ignoring her.

[13] In addition to the above, despite the father’s repeated statements (throughout the course of this proceedings) that both the CAS and the police were involved at that time, in the context of this proceeding he has provided no evidence whatsoever from either agency confirming this. I received no evidence from the CAS or the police supporting a finding that they were ever involved with this family, that they investigated any complaints or that they provided any directions to the father in relation to the mother’ ability to be in contact with the children or about the children’s alleged disclosure to their father.

[14] From this, I draw an adverse inference against the father that the contents of these files – if such files exist – would not have supported the father’s allegations, particularly his position that the CAS and/or the police had told him not to allow any contact between the mother and the children pending their investigation.

[15] At the return of the motion for leave to bring an urgent motion, AJ Kaufman required the parties to participate in an urgent case conference. If they were unable to reach an agreement, the issue of whether the mother would be permitted to bring an urgent motion would be decided by the presiding judge.

[16] The urgent case conference took place on June 8, 2020. At that time, the parties consented to a temporary without prejudice order granting both parents equal time with the children (on a week-about basis), with the exchanges to occur on Sundays at 5 p.m. By then, the mother had not seen the children or had any meaningful contact with them for almost one month. The mother testified, and I accept her testimony in that regard, that she felt compelled to consent to this week-about schedule for two main reasons. First, because she was desperate to see the children, something that would be further delayed if an agreement was not reached on that day. Secondly, because she was made to understand that a joint CAS and police investigation was underway, and that any judge hearing this motion would want to wait until it was concluded before granting her meaningful, unsupervised parenting time with the children.

[17] The interim without prejudice order provided that the week-about parenting schedule would be reviewed during the week of August 24, 2020, taking into consideration the children’s return to school. However, when September 2020 came around, the schools were closed due to the COVID-19 pandemic, and the children were forced to engage in online schooling. In Ontario, the school year 2020-2021 proceeded virtually for the better part of the year. As a result, the parenting schedule was never reviewed by the parties or by the court as had been contemplated in the interim without prejudice order.

[18] As is unfortunately the case whenever there is a unilateral withholding of children by one parent, or false allegations of child maltreatment by one of them, these events set the tone for what became a very high conflict parenting litigation.

PARTIES’ POSITIONS ON PARENTING

[19] By the time this trial was heard, the children had followed an equal, week-about parenting regime since the month of June 2020. The mother seeks to vary that parenting regime to one where the children would be in her care every weekday during the school year, and in their father’s care every weekend. During the summer, the children would spend every other week with each of their parents.

[20] The mother’s main reasons for the change she seeks to the parenting schedule are the following:

• The children would do better in school if she was primarily responsible for them every weekday during the school year;
• She lives nearby the children’s school and living close to their school during the school year would promote more stability for them, less commute to and from their father’s home, and a much better routine for their homework and schooling.

[21] The father wishes to maintain the week-about parenting schedule. In his view, the children have adapted well to this schedule, they are doing very well in school, and he is able and willing to support their education and schooling just as much as the mother.

[22] The mother seeks sole decision-making responsibility for the children. Her request is based on the father’s refusal to communicate with her in a meaningful and respectful way, and the parties’ contradictory views on health and educational issues. Further, the mother states that she has always been primarily responsible for making major decisions for the children, something that the father was more than happy to leave to her in the past, and something that she has continued to do since the parties’ separation despite the father’s attempts to meddle in the decision-making process in the months leading to this trial.

[23] The father is of the view that the parties have always shared decision-making responsibilities for the children during their marriage, and that the mother unreasonably attempted to exclude him from this part of the children’s lives after their separation. He is of the view that the mother has been primarily responsible for much of the conflict between them, especially as a result of her tendency to make unilateral decisions about the children without prior consultation with him, and her incessant and unreasonable probes into his privacy. Nonetheless, he believes that with a clear parenting order in place setting out their respective rights and obligations, and once this trial is behind them, things will significantly improve between the parents, and they will be able to better communicate and cooperate for the sake of the children.

PRELIMINARY COMMENTS ON CREDIBILITY

[24] Some of the father’s evidence in chief was seriously undermined under cross-examination. The father’s evidence was at times vague, at times exaggerated and his answers were often evasive, translating into long narratives not always relevant to the questions asked, instead of providing straight forward responses to simple questions.

[25] In addition, some of the father’s evidence was directly contradicted by significant documentary evidence confirming a different version of the facts. For instance, I mention the following examples:

• During his testimony in chief, the father adamantly denied having any interest in, or knowledge of, a business called “Surfing Brave” (and for which he had been ordered to provide disclosure). However, when cross-examined he was presented a Surfing Brave business card showing that he was the owner of the company. It was only then that the father was finally forced to admit that he did have knowledge of this business, and then went on a long explanation as to how this now defunct company had been set up and why, how it never really operated or earned any money, and when it was allegedly closed. The father had never before provided any disclosure or information about this company;
• The father maintained during this trial that the mother had wrongfully locked him out of the matrimonial home in circumstances where they had agreed to the terms of a nesting agreement. Text and email exchanges between the parties between November 6 and 16, 2019 clearly show that this was never the case, and support the mother’s evidence that the parties agreed the father would vacate the home and that she would remain in it with the children;
• The father asserted that between November 2019 and April 2020, the mother was imposing her own terms in relation to his parenting time whereas he was insisting on an equal time-sharing and fixed schedule. Email exchanges between the parties on February 21 and April 15, 2020 clearly confirm the contrary. Indeed, these written exchanges confirm that the father was content with the children remaining in the mother’s primary care and that he was fully participating in the negotiation of a parenting agreement that was being proposed by the mother. Moreover, at a time when the mother was asking for a more fixed and stable schedule (April 15), the father was expressing his preference to maintaining the “flexible” arrangement in place since the separation;
• The father refused to acknowledge, throughout his testimony, that when he was away for work during the marriage – including on some occasions when he was away for several months in a row – it was the mother who was solely responsible for the children’s needs and the household. In cross-examination, he could simply not agree with this proposition. He maintained the position that the mother had lots of support from her family members as well as from his own parents, and he refused to admit that when he was on the road, the mother was left with all the childcare and household responsibilities.

[26] In addition to the selected examples above, the father’s credibility was significantly undermined by his failure to provide full and frank financial disclosure throughout this litigation (as will be explained in more details below), and his wrongful withholding of the children as described above.

[27] The mother’s evidence was also put in serious question during her cross-examination on some specific and limited issues. For instance:

• She alleged for the first time during this trial that the father had assaulted her in Cuba during the year preceding their separation, something that she had never raised before. Her evidence in relation to the bizarre assault she allegedly suffered at the hands of the father during that trip (the father would have tried to wake her up by unsuccessfully lighting a flame under her foot while she was laying on the beach) was simply not credible;
• The mother maintained that she did not record the children’s exchanges or worn a camera during those exchanges. During his examination, her brother confirmed that this had indeed happened on a few occasions shortly after the parties reached their 2020 interim agreement on a shared parenting schedule (when the parental conflict was very high), but that she had stopped doing so for a long time.

[28] Nonetheless, the mother’s evidence as a whole was far more credible than the father’s evidence on key disputed events. Further, the mother’s version of the facts was mostly supported by significant documentary evidence whereas the father’s was not.

[29] For this reason, when the parties’ version of the events that transpired between them was contradictory, I mostly (but not always) accepted the mother’s version of the facts.

PARENTING

[30] I find as a fact that the mother was the children’s primary caregiver from the moment the children were born until the father’s unilateral withholding of them in May 2020. During that period of time, she was home full-time with the children except for a brief period of part-time employment, and her primary role during the marriage was to care for the children and the household while the father pursued a career as a commercial pilot.

[31] Following the parties’ separation in November 2019, the parties had agreed that the mother would remain in the matrimonial home with the children, and that the father would have reasonable and flexible parenting time with them. E.L. was in grade 3 at the time, A.L. was in senior kindergarten and the mother was only working part-time. The father was working full time as a pilot and he was away a lot, sometimes for weeks and months at a time. This plan made sense for everyone and it worked until the father stopped working due to the pandemic.

[32] During the first few weeks after the pandemic started, issues related to Covid restrictions and public health measures started to cause some friction between the parties. When the father was laid off due to border closures and reduced air traffic, he demanded more parenting time with the children to which the mother was not prepared to agree, at least not completely. Whereas the father wanted to implement an equal time-sharing regime, the mother was only prepared to extend his existing weekends. As a result, the father took matters into his own hands.

[33] I find as a fact that the father’s withholding of the children in May 2020 was a strategic move on his part to impose an equal time-sharing regime for the children, against the mother’s wishes. The unilateral withholding was both wrongful and unjustified, and in doing so the father completely disregarded the impact and emotional harm that his actions would have on the children and on the mother, who until that time had been their primary if not their main caregiver.

[34] The evidence before me confirms that the mother, on a handful of occasions during the parties’ marriage, resorted to corporal punishment as a form of discipline on the two older boys (she never used this form of discipline the parties’ daughter). Such corporal punishment took the form of spanking on the bottom, with the use of her hand or a wooden spoon.

[35] While I do not condone corporal punishment as a healthy form of discipline for children, it is important to state that there is no allegation (nor is there any evidence before me) that would support a finding that on any of these few occasions, the corporal punishment administered by the mother was excessive in the sense that it would have left marks on either child or caused any form of physical injuries. The mother explained that after giving either boy a warning for their bad behaviour, and then another, she had resorted to giving them one or two slaps on their bottoms either with her hand or, on one or two occasions, with a wooden spoon.

[36] The mother further explained that this form of discipline had been used by her on a handful of occasions only, and during the parties’ marriage. I accept her evidence that she had not used this form of punishment on the boys after the parties separated, and that the last time she had done so was when they were each five or six years old. Moreover, the mother testified (and this was not denied by the father) that the father was well aware of these events at the time they happened (she would tell him when he returned home from work or when they spoke on the phone if he was away), and that he had never expressed serious concerns about her actions, although he may have told her he did not approve of corporal punishment.

[37] What followed these unfortunate events are, sadly, all too common. This is the classic example of two competent, dedicated and caring parents who were able to work things out initially but who quickly descended into high conflict parenting litigation as a result of the mistrust that impregnated and then consumed their relationship after the father’s wrongful withholding of the children based on false allegations of child abuse. This significant mistrust, coupled with the parties’ complete inability to meaningfully communicate, and the lengthy legal battle that ensued, resulted in ongoing and mutual allegations of child abuse and poor parenting, with both parents feeling the need to protect themselves from such allegations while fishing for evidence of the other parents’ failures.

[38] I find that both parties contributed to the high parental conflict that followed the father’s unilateral withholding of the children. Early on after the parties’ separation, the mother exerted too much control over how much time the father could have with the children and what schedule he should follow. Throughout this litigation, she remained hypervigilant and began recording exchanges at her home as well as some phone and video calls between herself and the children (including one that she recorded not long before the trial, and which she presented at trial in an attempt to support her allegations that the children were going to bed very late at night and played video games all the time when in their father’s care). While I find that the mother eventually stopped recording exchanges, I am not certain she ever stopped recording her FaceTime and telephone communications with the children.

[39] While the father appeared to be content with the flexible “let’s-play-it-by-ear” arrangement that was in place between November 2019 and April 2020, after he was laid off from work with Sunwing he decided that the existing schedule was no longer of his liking. His testimony in relation to the reasons why he withheld the children and complained to the CAS was simply not credible. While he initially alleged that it was the children’s disclosure of excessive physical discipline that had caused him serious concerns leading to his complaint to the CAS, in cross-examination he corrected his earlier statement by saying that it was the reason for which the mother had disciplined the children – to stop them from expressing their wish to spend more time with him – that had been the cause of his concerns.

[40] I find that the father’s withholding of the children based on false allegations was simply the quickest (and cheapest) way he could find to impose his preferred parenting regime on the mother, against her stated objections.

[41] During the two years that followed, the conflict between the parents escalated to the point where every small issue was blown out of proportion. As an example, in the summer of 2022 A.L. was bit by one of the father’s girlfriend’s boarding dogs. Instead of hearing about this from the father (who did not report the incident to her), the mother heard about it from A.L. when she returned home to her mother after her week with her father.

[42] Although the bite itself was not (at all) a serious injury, instead of contacting the father for an explanation as to what had happened, the mother immediately attended CHEO with A.L. without notifying or speaking with the father. Because the father had previously refused to provide any information to the mother about his girlfriend’s dog boarding business and the vaccination status of her dog clients (according to the father, the mother’s queries were an improper intrusion on his girlfriend’s privacy), CHEO was forced to ask the City’s Public Health Department to investigate the dog’s vaccination status. This, of course, caused a huge upheaval between the parties, and increased the parental conflict and the children’s exposure to it.

[43] The mother’s decision to attend the hospital immediately without notice to the father was clearly wrong, and in my view an attempt to collect evidence of poor parenting on the part of the father. On the other hand, the father’s failure to notify the mother if this minor injury, his attempt to convince the mother (and this court) that the injury suffered by AL. was the result of a fall while scootering and not a dog bite, and his ongoing refusal to answer the mother’s legitimate questions about his girlfriend’s dog boarding business significantly contributed to A.L.’s minor injury being completely blown out of proportion.

[44] As each parent tried to control or take over as much parenting responsibilities as they could in relation to the children’s schooling, health care and activities to support their position in this litigation, they both became increasingly unreasonable in their actions. For instance:

• The mother refused to share the children’s official documents with the father;
• The father picked up the children’s belongings at the end of the school year, including all their schoolwork and artwork, and ignored the mother’s requests for her share;
• The mother made unilateral decisions about the children’s day-to-day lives without notice to the father (i.e. registering them in swimming lessons, summer camps, Kumon lessons, removing them from a sex education class, etc.);
• The father scheduled the children’s Covid vaccination without consultation with the mother (as to the dates), which led the mother to hurriedly take them to get vaccinated herself before their scheduled appointments with their father. The father did the same when E.L. needed to have his ears checked;
• The father changed the children’s doctor’s appointments without notice to the mother;
• The mother refused to deviate from the established parenting schedule, which led to the same parent having the children every Halloween and March Break since the parties separated;
• The father refused to confirm where he lived, where he was taking the children on his parenting time, or in whose care he intended to leave the children while he was away for a whole week.

[45] This is not to mention all the conflict that took place between the parents in relation to their contradicting views about COVID, their different interpretation of the ever-changing Public Health measures put in place during the pandemic, and the way they should implement them in their respective households.

LEGAL FRAMEWORK AND ANALYSIS ON PARENTING ISSUES

[46] When assessing the parenting order that would be best for these children, I am guided by all the factors set out in s. 16(3) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (“the Divorce Act”), namely:

(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.

Parenting time

[47] Despite the high conflict history of this case, and the evidence I heard during this ten-day trial about each parents’ alleged negligence and poor parenting skills, neither party is taking the position that the other parent should have significantly less parenting time than they are currently enjoying with the children. While the mother is asking for a change in the equal time-sharing arrangements in place, she is not seeking an order placing the children in her primary care. Similarly, despite all the allegations made by the father against the mother, he is seeking an order maintaining the current week-about schedule on a final basis.

[48] For this reason, I decided that it is not necessary for me to address all the parties’ allegations against each other in relation to the events that took place between them and following which they made allegations of abuse, negligence, or poor parenting about the other. In fact, I find that both parties are skilled, caring, loving and dedicated parents. They are, however, completely unable to cooperate or to meaningfully communicate with each other on anything related to their children, at least that was the case up until this trial was held.

[49] Despite their parents’ ongoing conflict and the children’s significant exposure to same, they appear to be doing relatively well. Perhaps it is because they are still young. The parents need to understand that if they continue to expose their children to their parental conflict, this will most likely change.

[50] It is obvious that the children love both of their parents and that they are deeply loved by them. Both parents acknowledge the close bond the other parent has with the children. I am of the view that it is in the children’s best interest to continue to spend a relatively equal amount of time with each of their parents. I have no concern about the parties’ ability to properly care for the children and to tend to all their needs while they are in their respective care.

[51] The mother asks that during the school year, the children remain in her care during weekdays and that they be in their father’s care on weekends. She testified that this was not an easy position for her to take, as she loves her weekends with the children very much. But she explains that her priority is the children’s stability and academic success. Because the mother works from home, she is present when the children leave in the morning to go to school, and when they come back home after school. On Fridays, she works at their school and gets to see them there.

[52] Therefore, despite being employed on a full-time basis Monday to Friday, she still gets to spend a lot of time with the children during the week even if they are going to school. Being in her care during weekdays is easy for the children, according to the mother, because her home is located very close to their school (and to the one they will go to when they move on to high school), and this is where their friends, activities and community are.

[53] The mother indicates that since the parties separated in 2019, the children have lived in four different homes with their father (in their paternal grandmother’s home in Kanata, in their paternal grandfather’s cottage in Quebec, in the father’s girlfriend’s home in Quebec, and now in this new home that they rent south of Manotick). The mother really wants the children to succeed in school. Education is the most important thing to her. She is not supportive of screens and video games, whereas she indicates that these are more accessible in their father’s home (something he does not deny). She has put the children in Kumon lessons in the past, something that even the father agrees has been very beneficial to them (although he did not take them to their lessons when they were in his care). The mother indicates that she and O.C.’s father have agreed to this parenting schedule recently for the same main reasons, and based on their agreement that this schedule would promote O.C.’s ability to succeed in school.

[54] Given the parties’ complete inability to meaningfully communicate with each other on matters of education and activities for the children, co-parenting with the father on educational matters has been very challenging, including in terms of homework and routines on school days. In the mother’s view, this inconsistency in both homes is not good for the children and does not promote their academic success.

[55] In my view, while the week-about schedule in place since June 2020 has worked reasonably well for these children, the parental conflict and resulting inability for them to cooperate or communicate meaningfully present important challenges from the perspective of the children’s stability and academic success. While at this time the children’s report cards confirm that they are doing reasonably well in school (they are “progressing well”, as opposed to “with difficulty” or “very well”), A.L. in grade 3 is a B student, whereas E.L. in grade 6 is a mix of B’s and A’s. As they move to higher grades and the homework gets more challenging, I can see a real benefit for the children to remain in their mother’s home during school days, closer to their school, and adhering to one homework, school and weekday routine instead of two very different ones.

[56] I find that the mother is the most dedicated of the two parents to the children’s academic success. The evidence before me confirms that the mother has been primarily responsible for the children’s educational needs both before and after the parties’ separation. While the father has been involved as well, his involvement in the children’s education is relatively new. His refusal to answer the mother’s requests for his consent to place the children in Kumon lessons, and his subsequent failure to bring them to their bi-weekly lessons during his parenting weeks, is but one example of his more passive engagement in the children’s schooling. In addition, the evidence shows that the father frequently took the children out of school early on Fridays (and sometimes he did not bring them to school at all) to arrive at the cottage early for the weekend.

[57] The schedule proposed by the mother will allow the father to continue to be involved in their schooling during his weekends with them (by supervising the completion of their homework), and to attend their school on Fridays and Mondays when he picks them up or drops them off for school. The schedule proposed by the mother has the additional advantage of not requiring the children to spend significant time commuting to and from their father’s home on school days (his current home is located south of Manotick, almost in Kars, at approximately 30 minutes from the children’s school if there is no traffic). Finally, the mother’s proposed schedule will allow all three siblings to follow the same schedule and maximize their time together.

[58] For those reasons, I find that the parenting schedule proposed by the mother is in their best interest.

Decision-making responsibility

[59] I find as a fact that the father has been generally unresponsive to the mother’s requests for information, input and consent, which he views as inappropriate invasions of his and his new partner’s privacy.

[60] While I agree that the mother’s need for information might have been, on some occasions, somewhat excessive, having reviewed hundreds of emails and text exchanges between the parties I am of the view that the mother’s requests were generally appropriate, necessary for valid reasons, and made in a respectful and child-focussed manner. Unfortunately, the father has mostly refused to engage in communications with the mother, orally or in writing, including on day-to-day or major issues which required a response or his input.

[61] Furthermore, whenever the father chose to communicate with the mother – usually when he was the one in need of an answer – his communications have frequently been accusatory and patronizing. As stated by Summers J. in her April 25, 2022 endorsement, the father’s “best defense is an offense”. This has been shown over and again in the countless email exchanges presented to me during this trial. Whenever the mother reached out to the father to discuss a concern she had in relation to the children or to ask a question, way too often the father’s response was an accusation about her own parenting skills or in relation to something completely unrelated to the question being asked.

[62] I am not saying that the mother’s communications have always been appropriate. She has also used accusatory and patronizing language at times. But overall, it has been an exception to the rule for her, whereas it has generally been the rule for the father.

[63] Overall, I find that the mother has been far more willing to communicate with the father and to provide him with relevant information about the children than he has. Her communications have also been much more respectful and child-focussed than the father’s. Overall, I find that the father has generally been unwilling to communicate with the mother and he has mostly ignored her messages and requests. Notably, he refused to confirm where he was taking the children during his parenting time, and he failed to notify the mother of his move from his girlfriend’s home in Quebec to a new rental home in Ottawa South, leaving it to the children to notify their mother after the fact. Once relocated into a new rental home in Ottawa with his girlfriend, the father refused to confirm the exact address, citing privacy and safety concerns.

[64] Unfortunately, both parties have also used and involved the children in their conflict, placing them in situations where they were required to take sides between their parents. For instance:

• Message from the father to the mother on August 30, 2020, in relation to whether the children should be enrolled in virtual school or go back to school in person:

  Are you really that concerned about their social skills more than their health and safety? Additionally both [E.L.] and [A.L.] have been expressing much concern about the safe return to school. They have said you're not willing to listen to them and are forcing them to attend school dispite [sic] their vocalized concerns. They say they know we both have the ability to home school and are very frustrated and confused by your position. They have asked me on multiple occasions during access changes to speak with you about giving them the time they need to feel safe. It's paramount that we can both support our children, meet their individual needs and see them through this challenging time by listening and supporting them.

• Message from the father to the mother in response to her raising some concerns about the father still showering with A.L. who was then six years old:

  I had the opportunity to speak with [A.L.] throughout the week about this issue. She said she brought up the concern of showering with you recently however, she says initially she was asking you not to shower with her. This was based on your refusal of wearing a bathing suit (cause you're also a girl) and your vagina being at her face level and she is uncomfortable with that. Apparently you then went on to tell her if you can't take showers with her anymore then neither should I, even though I wear a bathing suit. Now this is alarming and concerning but comes as no surprise and neither do your false accusations.

  Given the conversation [A.L.] says took place, your statements on privacy and what you feel is inappropriate, I expect you will cease showering with her without a bathing suit.

  You should know the children are conflicted by your actions in general and have expressed great frustration with your continued efforts to slander me. For the sake of our children's mental health and your relationship with them, you need to move on with life and stop trying to hurt me though the children. Your attitude has not been unnoticed by the children and is only weakening trust in your relationship with them.

[65] As one last example (there were so many more), I add that much evidence was given at trial about disclosure from the children to the father and his family during a New Year’s Eve dinner on December 31, 2022 about an altercation between E.L. and his mother. From all the evidence before me, I find that E.L. and his mother got into a heated argument the week before his week with his father as a result of the mother’s attempts to involve him in some way in this litigation, most likely by demanding that he allow her to video record him for the purposes of this trial.

[66] Ultimately, I find that the mother has been primarily responsible for all the children’s needs during the parties’ relationship, and that she was the one making all important decisions in relation to their health, education and overall well-being. Although I accept that the father was part of the decision-making process and that the mother sought his views and input before making any decision, the responsibility to gather relevant information, to reach out to professionals and organizations and to make arrangements for the children’s health and educational matters – among other things – fell upon her. This is not surprising given the father’s busy schedule and frequent absences from the home for work, while the mother was at home full-time with the children.

[67] I find that the father trusted in her ability to make sound decisions in relation to the children’s health care and education, and that she should continue to have final decision-making responsibilities in that regard.

[68] This said, the mother has at times been hypervigilant and, at other times, engaged in gatekeeping behaviours which have effectively excluded the father from the decision-making process despite his desire to be more involved. The father’s involvement in the children’s lives as a parent and his ability to have more than a peripheral role in their upbringing is important and must be fostered. There are reasons to believe that if sole decision-making responsibility is granted to the mother in all areas of the children’s lives and well-being, the father’s role and involvement in same will be diminished and undermined.

[69] To maintain the father’s important place in the lives of the children as an equal parent, it is important in my view that some areas of decision-making responsibility be given to him. This will have the added advantage of keeping both parents in check in terms of their obligations to inform the other of important decisions to be made, and to seek the other parent’s input before making those decisions.

[70] Based on all the above, I make the parenting order set out in detail at the end of this decision, apportioning the decision-making responsibilities between both parents, with the obligation to consult one another meaningfully before an important decision is made, but allowing one of them to make the final decision in case of a dispute.

FINANCIAL ISSUES

Pre-trial Motion to Strike

[71] On the first day of trial, the mother brought a motion to strike the father’s pleadings on all issues, except for parenting, and restricting his participation at trial regarding same. This motion had been allowed by Summers J. in her endorsements of December 22, 2022 and January 3, 2023. More specifically, Summers J. wrote:

In the event the respondent fails to comply with my orders and fulfill his disclosure obligations, the applicant has leave to bring a motion at the opening of trial to seek an order striking the respondent’s pleadings on all issues except for parenting.

[72] In the context of this motion, I found that the father had failed to comply with his long-standing obligation to provide full and frank financial disclosure. I found that his wilful failure to disclose showed a lack of appreciation of the serious nature of a court order, and a complete disregard to the impact that the non-disclosure would have on the mother’s ability to prepare for this trial. For all the reasons delivered orally at the time, I made the following order:

1. The Respondent’s claim in relation to the equalization of the parties’ net family property is struck. The trial on this issue shall proceed based solely on the evidence to be provided by the Applicant, which may include evidence obtained by way of cross-examination of the Respondent. The Respondent will be permitted to present submissions on this issue, but no evidence.

2. On issues related to child and spousal support, the Respondent is prohibited from relying on any documentary evidence that was not listed in the affidavits of documents served upon the Applicant’s counsel on or by December 30, 2022. The Respondent and any of his other witnesses are precluded from providing oral evidence in relation to any support issues for which the Respondent has been found in breach of his obligation to disclose, unless it falls squarely within the four corners of the documents disclosed by him up to and including December 30, 2022. In other words, I will not allow the Respondent to provide evidence that would lead to a more favourable result for him as demonstrated by the following examples: a. I will not allow the Respondent to provide oral evidence supporting his allegation that he has no interest in the four corporations for which he was required to provide disclosure, other than to introduce the documentary evidence that was contained in his affidavits of documents. Should the Applicant wish to cross-examine him on issues relevant to his income for support purposes, she will be permitted to do so. However, there will be no right of re-examination; b. I will not allow the Respondent or any of his other witnesses to provide oral evidence supporting his allegation that he does not receive stipends, benefits, or other such forms of compensation from his employment with Sunwing. Should the Applicant wish to cross-examine him on this, she will be permitted to do so. However, there will be no right of re-examination; c. I reserve the right to refuse to allow the Respondent or any of his witnesses to provide oral evidence in relation to any issues for which the Respondent has been found in breach of his obligation to disclose.

Child and Spousal Support

The parties’ employment history

[73] When the parties started dating, the mother had just started a two-year post-secondary education program to become a court reporter. At that time, the father was living in his mother’s home while working at a restaurant following his medical discharge from the Canadian Armed Forces. He had just returned from a tour in Afghanistan.

[74] The parties moved in together shortly after the mother found out that she was pregnant with E.L. This was not a planned pregnancy but both parties were committed to the relationship, and both very much wanted this child. At that time, the father had already expressed his desire to become a commercial pilot and he was taking flying lessons. The mother’s testimony as to what took place thereafter was not seriously disputed by the father. Whenever their evidence on this was contradictory, I accepted the mother’s evidence.

[75] It is clear to me that the parties agreed that they would support the father’s goal to become a pilot. Not only did they agree that his career would generate more income than the mother’s career as a court reporter, but the mother also enjoyed being at home and welcomed the opportunity to take on the role of a homemaker. The mother abandoned her court reporting studies shortly after finding out that she was pregnant with E.L., and never completed her program.

[76] In the years that followed the parties’ cohabitation, and before the father began working and earning a living as a pilot, the parties relied heavily on the financial settlement that the mother had received following her first divorce, as well as on the child support being paid by O.C.’s father to pay for their day-to-day living expenses.

[77] As the father’s training and career as a pilot took off, he was required to be away from the home for significant periods of time. While I do not accept the mother’s evidence that, when the father was at home, he showed very little interest in the children, I accept her evidence that the vast majority of the child-rearing, childcare and household duties fell upon her. Early on in his career, the father also gave private lessons as a licenced instructor, in addition to his regular work hours. When the father began working for larger international airlines, he could be away for weeks and on a few occasions was away for months at a time. When he returned home, he would continue to give private flying lessons as an instructor and work on various start-up businesses related to the air transportation industry, with various business partners.

[78] It is only after the parties separated that the mother started to actively look for employment. Throughout the marriage, her role was to take care of the children and the home while the father was out working and providing for his family financially.

[79] Before the parties separated (on or about 2017), the mother had started to work at the children’s school during breakfast before school and at lunch time, distributing meals to the children and supervising them. In 2019, the school started to call her to work as an emergency Early Childhood Educator and an Education Assistant, although she had no formal training in these fields. In September 2019, she was offered a position with the Children’s Bridge Adoption Agency as the Office Manager, four days a week. She was so appreciated by her employer that she was quickly offered a higher salary and full-time hours.

[80] The mother continues to work in that capacity to this day. In 2022, her estimated total gross income will be in the range of $60,000. While the mother earned nominal income throughout the parties’ relationship, her income since 2019 has steadily increased as follows:

• 2019: $16,323 – employment income except for $589 in investment income (mother working at school part-time and at Children’s Bridge part-time);
• 2020: $23,801 – employment income except for $589 in investment income (mother working full-time at Children’s Bridge but not at school because of COVID);
• 2021: $56,029 – employment income except for $589 in investment income (mother working at Children’s Bridge four days a week, and at school part-time on Fridays);
• 2022: estimated at $65,446 based on her November 26, 2022 paystub (mother working at Children’s Bridge four days a week, and at school on Fridays);
• 2023: same income as 2022 used as an estimate, on a without prejudice basis.

[81] The father completed his pilot training in 2011-2012 and worked as a pilot for various airlines from that date until the pandemic struck. When the COVID pandemic started, the father was employed by Sunwing. As public health measures closed down the borders, most airline travels were shut down, most especially those of vacation airlines such as Sunwing. After he was laid-off on or about April 2020, the father eventually received income replacement benefits (at first, the Canada Emergency Response Benefits (“CERB”) and then the Canada Emergency Wage Subsidies (“CEWS”)).

[82] When air traffic resumed at some point in 2021, although to a much lesser extent, the father was offered reduced flying blocks which he accepted. On a 2021-2022 New Year’s flight, the father found out he had contracted COVID. As a person with a long history of asthma and sleep apnea, the father states that he suffered damage to his lungs. In the months of January to March 2022, the father returned to work for brief periods of time, as he was hopeful that the effects of COVID on his lungs would wear off. Unfortunately, they did not, and he continued to experience difficulties while flying at high altitude.

[83] In consultation with his treating physicians, the decision was made that he needed to stop flying to tend to his health issues. At some point in 2022, he applied for and was accepted for Workplace Safety and Insurance Board (“WSIB”) benefits which he continued to receive at the time that this trial was held.

[84] Over the past few years, the father’s income has been as follows:

• 2017: $49,587 – employment income;
• 2018: $60,739 – employment income;
• 2019: $80,386 – employment income;
• 2020: $65,527 – employment income of $60,090 and EI benefits (in the form of CERB and/or CEWS) of $5,438;
• 2021: $51,192 – employment income of $27,800, EI benefits of $6,807 and CERB in the amount of $17,000;
• 2022: estimated at $79,675 – $42,058 in non-taxable (and therefore grossed-up) WSIB benefits and employment income of $19,575 (based on April 2022 paystub);
• 2023: same income as 2022 used as an estimate, on a without prejudice basis.

Child Support

[85] I find that the mother is entitled to child support from January 2020 onward.

[86] When the father left the matrimonial home on November 13, 2019, he gave the mother access to all the online banking (passwords for the bank accounts, utility bills, etc.) on the understanding that she would be responsible for the payment of those bills going forward since she was the one remaining in the home with the children. The father prepared a budget which took into consideration all the household expenses, the child support that the mother was receiving for O.C. as well as the tax credits and benefits available to her for the three children.

[87] During the months of November and December 2019, the father continued to pay the mortgage as well as other expenses (including some of the mother’s expenses paid with the use of the father’s credit card) which I find was roughly equal to the child support he was required to pay pursuant to the Child Support Guidelines, O.Reg. 391/97 as am.

[88] The father paid a total of $3,797.80 in child support during the year 2020, and $1,650 in 2021. I have looked at the list of various expenses that the father claims to have assumed on his own for the children since the date of separation, and which he asks be deducted from any child support arrears he owes, and I am not prepared to give him any credits on account of these expenses. This is because the vast majority of these expenses are either gifts from him to the children, items purchased by the father for activities he enjoyed with them while they were in his care, or simply because they are not the kind of expenses that can be deducted from one’s child support obligations. For instance;

• iPads for the kids (which remain at their father’s home);
• Nerf gun camp at community center over the summer;
• Expenses related to the father’s boat (including $2,000 for “boat transport”, a wake board in the amount of $459 and $879.49 for winter storage of the boat, among other things);
• Books, comic books, toys and expenses for activities (such as tickets for events or amusement parks);
• Gas and parking tickets;
• Netflix, Prime Video and Nintendo subscriptions;
• Fireworks;
• Furniture for the children’s bedrooms;
• Purchases at various retail stores which showed the total amount paid but did not provide any description of the items being purchased (for instance, “$253.15 at Winners” or “$197.05 at Costco” on his credit card bills).

[89] I establish the child support payable by both parties from January 2020 to present as follows:

• For the months of January 2020 to and including April 2020, the father was required to pay $972 per month in child support to the mother for the two children;
• I have chosen not to reward the father’s unilateral withholding of the children with an award of child support for the month of May 2020. However, since the children were in his care, I am not requiring him to pay child support to the mother for that month either;
• For the month of June 2020 to and including December 2020, the father was required to pay $972 per month to the mother for the two children and the mother was required to pay the father $360 per month for the two children, resulting in a set-off amount of $612 per month payable by the father to the mother;
• For the year 2021, the father was required to pay $775 per month to the mother for the two children and the mother was required to pay the father $854 per month for the two children, resulting in a set-off amount of $79 per month payable by the mother to the father;
• For the year 2022, the father was required to pay $1,164 per month to the mother for the two children and the mother was required to pay the father $998 per month for the two children, resulting in a set-off amount of $166 per month payable by the father to the mother;
• From January 1, 2023, and every month thereafter until the yearly review which is to take place in April 2024, the father shall pay $1,164 per month to the mother for the two children and the mother shall pay the father $998 per month for the two children, resulting in a set-off amount of $166 per month payable by the father to the mother. This is without prejudice to the parties’ right to seek an adjustment of their 2023 child support obligations based on the income they actually earned in 2023 (as may be confirmed by their 2023 income tax returns and disclosure), once their 2023 support obligations are reviewed in April 2024.

[90] Neither party is making a claim for a contribution towards past s. 7 expenses.

[91] On a go forward basis, the parties shall share s. 7 expenses that are eligible (as set out in the parenting order below) in proportion to their income, with the mother assuming 45% of the net cost and the father assuming 55%.

Spousal Support

[92] The mother is clearly entitled to spousal support on compensatory grounds. Indeed, her compensatory claim is very strong.

[93] It is clear that she discontinued her education for two main reasons; firstly, because she was pregnant with the parties’ first child and, secondly, because the parties made a joint decision to support the father’s career to become a commercial pilot instead of the mother’s education plan and career as a court reporter. When the father achieved that goal, the parties had two children and it was agreed that the mother would remain home to care for them. I find as a fact that the mother suffered an economic disadvantage arising from the role she performed during the marriage, a disadvantage that continues to be present following the parties’ separation. I find that the mother supported the father’s career by placing her own career on hold to take on the responsibilities associated with raising the parties’ children. That is how the parties chose to allocate their family responsibilities amongst them.

[94] I find that the mother’s entitlement to spousal support is also based on her needs which arise from her complete reliance on the father’s financial support during this 8.5-year relationship.

[95] The challenge is not one of entitlement, but rather one of current ability to pay on the part of the father.

[96] Given the health issues that the father allegedly experienced after having contracted COVID in 2022, he states that he is no longer able to work as a commercial pilot (at least for now). He states that he is currently involved in many rehabilitation programs and is being followed by a team of neurologists and respiratory specialists. The father testified that during the weeks preceding this trial, he participated in round table discussions with his union about potential retraining and the possibility of him working for Sunwing in a non-flying position. He stated that at the request of his union (or the WSIB person responsible for his file), he completed a vocational assessment and that his team is exploring the possibility of vocational retraining.

[97] It must be noted that other than the father’s own testimony in that regard, he has provided absolutely no medical evidence to support any of his allegations. However, the support order I make for the year 2023 is made on a without prejudice and, for that reason, I accept the father’s evidence as to his employment and medical status for the purpose of establishing the parties’ 2023 support obligations, on a without prejudice basis.

[98] Up until the week before the trial began, the father’s WSIB benefits were in the amount of $4,000 per month, and thereafter they increased to $4,200 per month (these benefits are not taxable and as such, must be grossed-up for support purposes). What his employment future will look like is unknown at this time. However, for the time being and given the income he earned since the beginning of the pandemic, his income for the years 2021 to present has been relatively equal to the mother’s income. Indeed, in 2021 the mother earned slightly more than the father. No spousal support is payable in accordance with the Spousal Support Advisory Guidelines (“SSAG”) for any of the years since the parties’ date of separation, except for the months of June to December 2020 during which the parties had an equal time-sharing parenting schedule and the father earned far more than the mother. Even then, the low range suggested by the SSAG for those months ranges between zero (low) and $345 (high).

[99] I find that the father did not have an ability to pay spousal support in any of those years.

[100] However, the mother’s compensatory claim is very strong, and it remains to be seen how the father’s career in the aviation industry will unfold. For those reasons, I make no order for spousal support at this time, but leave it open to the mother to bring a motion to vary spousal support in the future in the event that there is a material change in the parties’ circumstances.

Equalization of the parties’ net family property

[101] By the time this trial was held, the parties had agreed to many of the values to be included in the equalization of their net family property. However, there were a number of items that continued to be in dispute. I will deal with each of them below.

1. Date of separation assets and debts

(a) The value of household contents retained by each.

[102] I accept the mother’s position that the parties divided their household contents equitably between themselves. The only evidence I have in relation to this particular issue, except for the parties’ brief testimony on the topic, is a text exchange between them on May 3, 2020 during which they discussed the father’s wish to pick up some larger items. I have no evidence whatsoever of value for household contents, nor do I have any evidence of the specific items that each has kept.

[103] As a result, I attribute no value to these items in the parties’ net family property.

(b) The value of the mother’s 2009 Toyota Highlighter

[104] That vehicle was ten years old at the time of the parties’ separation. It was sold two years after the separation for $8,200. The mother’s position that this was the value of the car on the date of separation (two years prior) is not reasonable. The father has submitted no evidence to support his assertion that this vehicle had a fair market value of $16,000 on the date of separation.

[105] I have therefore split the difference between their respective position, and used a value of $12,000.

(c) The value of the father’s interest in various businesses

[106] It is clear that during the parties’ relationship and at the time of their separation, the father was involved in various businesses including but not limited to Maple Hangar, Surfing Brave, Spoko Design and 12155711 Canada Inc.

[107] Throughout the course of this proceeding, the mother requested, and the court ordered, the father to provide extensive disclosure of corporate records for these four businesses. The father’s disclosure has been scarce and for some of these businesses, none has been provided. The father’s evidence in relation to his interest in these businesses was vague and contradictory. For instance;

• While he claimed to have had no ownership interest whatsoever in Maple Hangar, he failed to explain how he was able to obtain such confidential and sensitive documents such as this business’ financial statements and corporate income tax returns;
• While he affirmed under oath when questioned by his own lawyer (in the context of the pre-trial motion) that he had absolutely no knowledge of the Surfing Brave business, in cross-examination when he was presented with a business card confirming his status as Surfing Brave’s owner as well as a print-out from Surfing Brave’s Instagram account showing him as the owner, he “remembered” its existence;
• Some of the evidence provided by the mother supports a finding that the father was involved in the other two businesses, but for what period of time and in what capacity cannot be determined.

[108] Ultimately, I have absolutely no evidence that would allow me to ascertain the nature of the father’s interest in any of these businesses, or the value of any ownership interest he might have in these operations. While I am not prepared to impute any value for the purpose of equalizing the parties’ net family property, the father’s failure to provide full and frank financial disclosure in relation to his business interests will affect the decision I make on equalization, as discussed below.

(d) The value of a debt owing by the mother to her brother Jason

[109] The evidence before me confirms that the amount of $33,812.16 was owing by the mother to her brother on the date of marriage. It has not been reimbursed and as of the date of the parties’ separation, the amount owing was $37,312.16.

2. Date of marriage assets and debts

(a) Motor vehicle accident settlement owed to the father (in the amount of $83,760.95)

[110] The father claims that at the date of the parties’ marriage, he was still owed $83,760.95 as part of the monetary settlement he received following his 2009 motor vehicle accident. To support this claim, the father provided a closing letter from his personal injury lawyers dated February 13, 2013, confirming a payment to him of $78,299.14 on October 30, 2012 and a final payment of $5,472.81 on February 13, 2013.

[111] The parties married on December 18, 2012. Therefore, the first payment was received by the father a month and a half before the date of marriage. The balance of the funds was received by him two months after the parties’ marriage.

[112] Throughout the course of this proceeding, the mother sought documentary evidence showing the tracing of these funds into assets that the father might have still had on the date of his marriage. Many orders were made by the court requiring the father to do so. Until one day before the commencement of this trial, the only evidence provided by the father to support this substantial date of marriage deduction was the two letters received from his personal injury lawyers confirming the amounts received and still to be received.

[113] It was only one day before the trial was set to begin that the father, through his counsel, advised that the three bank statements listed in his December 30, 2022 affidavit of documents (and disclosed for the first time on that day), were part of his tracing evidence on this issue. The nature of these bank statements and the reason for which they were produced were never explained.

[114] As a result, following the pre-trial motion, I refused to allow the father to rely on these three bank statements as evidence of the tracing of his settlement funds. Indeed, none of the sworn financial statements ever produced by the father in the context of this litigation included any of the bank account balances shown on these bank statements.

[115] I find that the father is not entitled to a date of marriage deduction on account of these payments received before and after the date of the parties’ marriage.

(b) Debt owed by the mother to her brother

[116] As stated previously, the amount of $33,812.16 was already owing by the mother to her brother on the date of the parties’ marriage (debt related to the payment of the mother’s legal fees associated with her previous divorce, as well as some tuition).

(c) Other date of marriage items

[117] The mother has submitted no evidence to substantiate her allegation that she had $500 in her bank accounts on the date of the parties’ marriage, and the father has provided no evidence of the alleged value of his household contents on that date either. No value is attributed to these items.

3. Conclusion on equalization

[118] Based on all the above, and as shown in the Net Family Property Statement attached as Schedule “A”, the mother would owe the father an equalization payment of $14,392.37. However, this does not take into consideration the father’s potential interest in various corporations as set out above. The father’s failure to provide full and frank financial disclosure of his various interests therein (or lack thereof) was in breach of many court orders and of his clear obligations under the rules. No one knows what the result might have been had this disclosure been provided as required.

[119] As a result, I conclude that neither party owes an equalization payment to the other.

FINAL ORDER

[120] Based on all the above, the following final order is made:

PARENTING

Parenting Time Schedule

1. Commencing on the first day of the 2023-2024 school year, the children shall be in their mother’s care on weekdays and in their father’s care on weekends, subject to the Holiday Schedule contained in paras. 7 to 13 below.

2. The father’s parenting time shall begin on Fridays after school (or 5 p.m. if there is no school) and end on Monday mornings at school (or 9 a.m. if there is no school). The mother’s parenting time shall begin on Monday at the beginning of school (or 9 a.m. if there is no school) and end on Friday after school (or 5 p.m. if there is no school).

3. During the children's school summer vacation (which begins on the Friday which falls during the last week of school in June until the Friday which immediately precedes the first day of school in August/September), the parties shall share parenting time on a week about basis commencing at 5 p.m. on Fridays. To be clear, the first full week of the children’s summer vacation shall begin on Friday at 5 p.m. and shall be the father’s first full summer week with the children, until 5 p.m. the following Friday, when the mother’s first full summer week with the children shall begin.

Decision-Making Responsibility

4. The parties shall consult each other meaningfully before making any important decision in relation to all aspects of the children’s well-being, including in relation to the children’s health care, education, religion or spirituality, and extra-curricular activities.

5. Meaningful consultation means that the parties must discuss the decision to be made, provide each other with all information relevant to the decision to be made, as well as with the child/children's thoughts and preferences if appropriate, and the parents’ respective input. The parties shall then attempt to come to an agreement with regards to the decision.

6. If the parties are unable to come to a consensus after a meaningful consultation has taken place, the following shall apply: a. The mother shall have final decision-making responsibility over the children’s health and education; b. As part of her final decision-making responsibility over the children’s health, the mother shall be able to enrol the children in counselling if needed, to choose the counsellor and to retain the counsellor without the Respondent father’s consent. However, both parties shall have an opportunity to participate in an initial Intake Meeting with the counsellor before such counselling begins; c. The father shall have final decision-making responsibility over the children’s dental health; d. During the school year, the mother shall have sole-decision making responsibility for the children’s extracurricular activities taking place during weekdays only, whereas the father shall have sole decision-making responsibility for the children’s extracurricular activities taking place during the weekend; e. The mother shall have sole decision-making responsibilities for the children’s extracurricular activities taking place during the summer of 2023, and every other year thereafter. The father shall have sole decision-making responsibility for the children’s extracurricular activities taking place during the summer of 2024, and every other year thereafter. The children shall not be placed in more than one extracurricular activity (each) per summer, to take place in the City of Ottawa, unless the parties agree otherwise; f. Both parents shall ensure the children’s regular participation in their extracurricular activities on their parenting time; g. Each parent is free to educate and expose the children to their religion and cultural heritage as they see fit.

Holiday Schedule

7. The regular parenting time schedule set out in paras. 1 to 3 above shall remain in place during academic, religious, PD days and statutory holidays, with the exception of the following:

8. Summer: Each parent shall be entitled to two (2) weeks of uninterrupted summer vacation annually as set out below: a. On or before May 1 of every year, the parties shall attempt to come to an agreement with regards to the scheduling of each parent's summer vacation. If they are unable to agree, the father shall have the first choice of summer vacation weeks in odd-numbered years, and the mother shall have the first choice of summer vacation weeks in even-numbered years, with such choice to be confirmed by the party having first choice no later than May 10, and with the other parent’s choice to be confirmed by May 15. If a parent does not provide written confirmation by the set date, he/she shall have forfeited his/her right to have a two-week long summer vacation with the children that year; b. Each party shall commence her/his two-week vacation on the Friday of the start of any of her/his summer weeks, and it shall end on Friday two weeks later when the children are dropped-off to the other parent; c. When the two-week vacation of a party is ended, the other party shall have the start of their regular summer week, whether it was their week or not.

9. Christmas: The parties will equally share the children's Christmas Break. The children will stay with the mother for the first half of the Christmas Break in odd-numbered years and the last half of the Christmas Break in even-numbered years, and with the father for the first half of the Christmas Break in even-numbered years and the last half of the Christmas Break in odd-numbered years.

10. The first half of the Christmas Break starts after school on the last day of school in December and ends at noon on the date that is the halfway point of the Christmas Break. The second half starts at noon on the date that is the halfway point of the Christmas Break and end at the start of school on the January return date.

11. Christmas Eve/Morning and Christmas Day: Regardless of the Christmas Break schedule set out above, the children will stay with the mother on Christmas Eve at 5:00 pm until Christmas Day at noon, and with the father from noon on Christmas Day until noon on Boxing Day in odd-numbered years. The opposite schedule will be in place in even-numbered years, with the father having the children for Christmas Eve and the mother for Christmas Day.

12. March Break: The regular parenting time schedule will remain in place during the March Break, unless one parent is able to take the entire week off work or wishes to travel with the children outside of the City of Ottawa for a vacation. In that case, notice of that intention shall be provided to the other parent by no later than December 31st. In case both parents wish to travel, the mother shall have priority in odd-numbered years and the father shall have priority in even-numbered years. The holiday week shall not exceed seven (7) days and shall begin after school on the Friday or on the Monday morning.

13. Mother's Day: The mother may have the children on Mother's Day Sunday from 9 a.m. until 2 p.m. if she confirms her wish to do so by 5 p.m. one week (seven days) prior, in writing (no provisions for same is necessary for Father’s Day as the children will always be with him on that day in accordance with the regular parenting time schedule).

Other Parenting Provisions

14. The parenting schedule set out in this order may only be altered with the parties' written consent, said written consent shall not be arbitrarily or unreasonably withheld.

15. Neither parent is permitted to plan activities for the children on days in which they are not in their care unless the other party has given their written consent to same. At all times the parties shall take into consideration the children’s wishes and preferences in relation to these activities.

16. All exchanges of the children shall take place at school during the school year.

17. During the summertime or on days when there is no school during the school year, the following shall apply: a. If the children have been placed in daycare or summer camps by the parent who has them in his or her care during any given week, the children shall be dropped-off and picked-up directly at daycare or summer camp; b. If the children are not in daycare or summer camps, the parent who has the children in her/his care shall be responsible to drop off the children at the residence of the other parent for the stated time of the exchange; c. If either parent moves to a residence that is not in the City of Ottawa, then that parent shall be responsible to pick-up and drop off the children at the other parent’s residence at the beginning and end of his/her parenting time.

18. Neither parent shall denigrate the character of the other to the children or to a third party in any situation where the children might overhear them. The parties shall also make their best efforts to ensure that their friends and family do not denigrate the character of the other parent to the children or within the hearing of the children.

19. The mother shall be responsible for renewing and holding all the children's government and official documents (i.e., Passport, OHIP Cards, Birth Certificate, etc.), and the father shall be entitled to the use of the same when needed unless a photocopy will suffice.

20. The parties shall communicate with each other using email and texts, and only in the event of an emergency or a late requirement to change a time in the parenting time schedule is the telephone to be used as a form of communication. All forms of communication shall be respectful, brief and child focussed.

21. The children shall have free and uninterrupted access to either parent by telephone or other means of communication at all reasonable times, so long as the same does not interfere with the other party's household.

22. Neither party shall electronically record parenting exchanges, FaceTime, or telephone calls between the children and the non-residential parent.

23. If a parent plans a vacation with the children anywhere in Canada, that parent will give the other parent at least 30 days’ notice before the planned trip, providing the flight information, the trip itinerary, as well as contact information for the child during the trip.

24. Where a parent plans international travel with the children, that parent will prepare, for the signature of the other parent, a consent letter proving that the child has permission to travel. The other parent will not unreasonably refuse to sign the consent letter.

25. If either parent proposes to change their residence within 10 kilometers from their current residence in the city of Ottawa, they will provide the other parent with the new address, telephone number and the date of the move at least 60 days before the move.

26. Neither parent may change their place of residence outside of the perimeters set out above without providing the other parent with 60 days’ notice of the proposed move and obtaining the written consent of the other parent or a court order to allow the move. The notice must include the location of the proposed new place of residence, the date of the proposed move, and, if necessary, a proposal for modification of the parenting time arrangement.

CHILD SUPPORT

27. The parties’ child support obligations from January 2020 to present shall be as follows: a. There shall be no child support payable by either party for the months of November and December 2019; b. For the months of January 2020 to and including April 2020, the father was required to pay $972 per month in child support to the mother for the two children; c. There shall be no child support payable by either party for the month of May 2020; d. For the month of June 2020 to and including December 2020, the father was required to pay $972 per month to the mother for the two children and the mother was required to pay the father $360 per month for the two children, resulting in a set-off amount of $612 per month payable by the father to the mother; e. For the year 2021, the father was required to pay $775 per month to the mother for the two children and the mother was required to pay the father $854 per month for the two children, resulting in a set-off amount of $79 per month payable by the mother to the father; f. For the year 2022, the father was required to pay $1,164 per month to the mother for the two children and the mother was required to pay the father $998 per month for the two children, resulting in a set-off amount of $166 per month payable by the father to the mother; g. On a without prejudice basis, from January 1, 2023, and every month thereafter until the yearly review which is to take place in April 2024, the father shall pay $1,164 per month to the mother for the two children and the mother shall pay the father $998 per month for the two children, resulting in a set-off amount of $166 per month payable by the father to the mother.

28. From the amounts set out above, the father shall receive a credit of $3,797.80 for 2020 and of $1,650 for 2021, representing the child support payments he has paid during those years.

29. There are no arrears owing by either party on account of the children’s special and extraordinary expenses up to and including February 2023.

30. Beginning on March 1, 2023, the parties shall share special and extraordinary expenses for the children in proportion to their respective income, with the mother assuming on a without prejudice basis 45% of the net cost and the father assuming 55%.

31. Each party shall be solely responsible for the costs associated with any extracurricular activities and summer camps in which they enrol or register the children unless the parties agree otherwise.

32. Commencing in 2024, the parties shall exchange their previous year's Notices of Assessment and tax returns by June 30 of each year and child support will be reviewed by the end of July each year based on the previous year's income, and retroactive to January 1st of the previous year.

SPOUSAL SUPPORT

33. There is no spousal support payable by the father to the mother at this time.

EQUALIZATION OF NET FAMILY PROPERTY

34. Neither party owes an equalization payment to the other.

COSTS

[121] If the parties are unable to agree on costs, I will accept written submissions on costs not exceeding four (4) pages, double-spaced (12-point font), in addition to Offers to Settle and Bills of Costs, in accordance with the following timelines: a. The mother to serve and file by May 15, 2023; b. The father to serve and file by May 29, 2023; c. Any reply by the mother shall be served and filed by June 5, 2023. The mother’s reply shall not exceed one page.

Madam Justice Julie Audet Released: May 3, 2023

COURT FILE NO.: FC-20-670 DATE: 2023/05/03 ONTARIO SUPERIOR COURT OF JUSTICE LENORE CORK-LEMAY Applicant – and – MATTHEW LEMAY Respondent REASONS for decision Audet J. Released: May 3, 2023