COURT FILE NO.: FS-20-00043623-0000
DATE: 2023-05-12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R.L., Applicant
AND:
M.F., Respondent
BEFORE: Kurz J.
COUNSEL: Martha McCarthy and Jonathan Robinson, for the Applicant
Judith Nicoll, for the Respondent
HEARD: October 24 - 28, & 31, November 1, 3 & 4, December 15, 2022, April 28, 2023
Endorsement
Introduction
[1] “Nothing is free”, wrote the British poet, Ted Hughes[^1]. “Everything has to be paid for. For every profit in one thing, payment in some other thing.” So it was here, for the parties to this case. Each made decisions that they thought best for themselves and their family. Each decision exacted a cost, to them, their spouse and their family. That cost is, in part, being measured out in this decision. In many ways, it is a dear one for this entire family.
[2] The parties to this proceeding (whom I also refer to as the “parents”) have been extremely successful in their careers. Each has a lucrative and well-respected job. Each can be considered wealthy, even independently of the other. However, the last years of their relationship and their post-separation years were increasingly filled with acrimony and emotional harm to their children.
[3] The Applicant (the “Father”), a banker, earns far more income than the Respondent (the “Mother”), a doctor. But his success has exacted a heavy price in his relationship with each of the Mother and their two daughters. He was often absent as the children grew up. Equally, his post-separation decision to remain in a pressure cooker Home situation has likely had a profound impact on his relationship with the parties’ children. Further, it increased the level of conflict between the parties that was exposed during this trial.
[4] The Mother too has made her own choices that have contributed to this lengthy and costly litigation. She portrays the Father as abusive, controlling and dangerous; a view that the children have come, at least in part, to share. But while the trial evidence may show the Father to have been a less than perfect spouse and parent, it does not support the Mother’s portrayal of him. Nonetheless the Mother has only offered diffident and slowly improving support for his attempts to mend his wounded relationship with their children.
[5] In regard to the parties’ financial issues, the Mother continues to choose part-time employment in her medical specialty even though many of her colleagues work on a full-time basis and her children are now close to seventeen and fifteen years of age. Yet the Mother argues that the Court should ignore her opportunity to earn a substantial full-time income and treat her as if she can indefinitely work on a part-time basis.
[6] I add that both parents have chosen to engage in this very expensive, protracted and corrosive litigation.
[7] The main subject of this trial has been the Father’s parenting time with the parties’ two mature, teenaged daughters: A. and B. (collectively the “children”)[^2]. A. will turn seventeen in June 2023 while B. will turn fifteen that same month. There is no issue as to their residence or primary parenting. The children have always been in the Mother’s primary care, a status quo which the Father respects. They have also had regular daytime parenting time with him, a position which he finds insufficient and contrary to their best interests. He insists that the children have overnight visits with him, despite their strong wishes to the contrary.
[8] While the children are close, they differ somewhat in their views of their Father and the time they wish to spend with him. B. is less negative about the Father and more open to spending time with him than her older sister, A. Nonetheless, they are as one in rejecting the Father’s entreaties to spend overnight visits with him.
[9] The Father says that the children have been unduly influenced, if not alienated against him by the Mother. He fears that they are being drawn further and further away from him; a process that will continue unless immediately rectified. Notwithstanding their strong views and maturity, he says that their best interests require overnight parenting time with him.
[10] The Mother disagrees. She says that the children have valid reasons for their reluctance. She asserts that the children’s wishes are entitled to respect and deference. She denies being the cause of the children’s reticence towards the Father. She points instead to his behaviour, of which she is highly critical, particularly as it has affected her and the children. She describes his conduct under the rubrics of “Interpersonal Violence” (“IPV”) and “Coercive Control”; albeit without offering many particulars of such troubling behaviour in her testimony.
[11] During the course of the trial, the court heard from both parents, members of their families, as well as one of the Mother’s friends[^3]. It also heard from the experienced psychologist and assessor, Dr. Helen Radovanovic (also described in these reasons as the “assessor”). She conducted a s. 30[^4] parenting assessment in 2021 and then updated it in 2022. She produced two lengthy and detailed assessment reports, one dated July 26, 2021 (the “Assessment Report”) and a second dated May 9, 2022 (the “Update Report”).
[12] Dr. Radovanovic’s parenting recommendations evolved over the nine and a half months between her two reports. She ultimately opined that it was in the best interests of the children that they be governed by “a minimal expectation of regular overnight time with their Father”. In a nutshell, she recommends alternate weekend paternal parenting time, from Saturday to Sunday, mid-week non-overnight parenting time and other holiday overnight time. She offers that opinion, fully aware of the children’s ages and strong resistance to that proposal. She also recommends that the children be required to return to family counselling and that a parenting coordinator be appointed.
[13] Ironies abound in the parents’ responses to Dr. Radovanovic’s various recommendations. Those reactions appear to depend on the alignment between the parties’ positions and the assessor’s recommendations. When Dr. Radovanovic first recommended a go-slow approach to increased parenting time, including overnights, the Mother was supportive but the Father was opposed. He went so far as to move for added holiday parenting time. Yet when the assessor called for a more aggressive approach to increasing his parenting time, the Father voiced his full-throated approval. He offered only what his counsel referred to as two “friendly” amendments, set out below.
[14] The Mother, who relied on Dr. Radovanovic’s recommendations to oppose the Father’s 2021 motion for increased parenting time, is now unwilling to accept the assessor’s updated recommendations at face value. The Mother testified that she does not oppose overnight visits, but only so long as the children agree. She asserts that they are old and mature enough to have a final say about their parenting arrangements. Unsaid of course, is the fact that the children, while not perfectly aligned, agree that they do not wish to increase the time and nature of their parenting time, particularly regarding overnight visits.
[15] The Mother expresses the fear that an order made over the children’s wishes will only spur greater family conflict, diminish their relationship with the Father and paint her as the recalcitrant parent. She openly fears becoming the subject of ongoing contempt proceedings if the children refuse to obey a court order.
[16] In addition to parenting issues, the court has been presented with an array of financial issues between the parties, including property and equalization issues, spousal support, as well as partition and sale of the matrimonial home (the “Home”).
[17] Among the parties’ property and equalization issues are the valuation of certain assets as of the date of separation. One key valuation issue arises from the Father’s claim that the Mother brought a $125,000 student loan from her medical training into the marriage. She denies it. The parties also cannot agree on the value and or disposition of the contents of the Home. The Father also wishes either to assign what he describes as an arbitrarily “low” figure of $50,000 to those contents of the Home which he left behind when he moved out, or to have the contents (other than those of the children) divided in specie. The Mother says that those items have already been equally divided.
[18] Regarding support, the Mother seeks a significant sum of compensatory spousal support, based on the Father’s current income of just over $2 million per year, which represents a substantial increase since separation. The Father has already agreed to pay the Mother full table child support and a high percentage of s. 7[^5] expenses, including private school. The Father denies that the Mother is entitled to any spousal support, or if she is, that it should be below the low range under the SSAG[^6]. As part of his argument, the Father points out that the Mother only works 60% of the time and only earns about 60% of the income of full-time doctors in her own medical practice association. The Father seeks to impute a full-time income to the Mother, based on the income earned by her full-time peers. The Mother rejects any imputation of income.
[19] Finally, the Mother seeks a final order of exclusive possession of the Home until the parties’ youngest child, B., finishes high school in about 2 ½ years. The Father seeks its immediate partition and sale.
Issues
[20] This trial raises many issues regarding the parenting arrangements for the children and finances. Those issues can be categorized as follows:
What arrangements should the court order for the children’s parenting time with the Father?
What property and equalization payment orders should the court make?
What child support should the court order the Father to pay to the Mother?
What spousal support should the court order the Father to pay to the Mother?
Should the Home be subject to immediate or delayed partition and sale?
Summary of Findings and Orders
[21] In sum and for the reasons that follow, I make the orders summarized below regarding the parenting and financial issues raised in this trial and as agreed upon by the parties. I set out the terms of those orders in full detail at the end of this endorsement.
[22] In brief, regarding parenting:
I order what is in effect a continuation of the status quo, non-overnight parenting time for the children.
But I do not require A. to participate in that parenting time unless she chooses to do so.
I adopt a “friendly” amendment regarding mid-week parenting time offered by the Father.
I order that counselling between B. and the Father resume but do not require it of A. unless she consents.
Similarly, I order that the counselling continue between the parents until B. turns 16.
I set out terms should the current counsellor be unable or unwilling to continue to offer his services to this family.
While I do not order that A. participate in the parenting time and counselling, I strongly encourage it.
I dismiss the Father’s request for parenting coordination as I lack the jurisdiction to order it.
Finally regarding parenting, I will remain seized of this matter and will review the parenting terms of my order in six months.
[23] Regarding financial issues:
I determine a number of valuations issues below. Hopefully, based on those figures, the parties can then agree on the proper equalization figure. If not, I set out the process that will apply below.
I require the parties to equally divide the contents of the Home other than the children’s furniture and possessions, in specie.
I set out the terms regarding child support and its ancillary terms agreed upon by the parties and the process to resolve the partially agreed upon issues regarding special and extraordinary expenses and insurance as security for support.
I find that the Mother has a claim to spousal support on both a compensatory and non-compensatory basis. The compensatory claim is a moderate one, neither strong nor weak.
I impute income to the Mother as requested by the Father at the rate of $550,000 per year.
I order the Father to pay periodic spousal support to the Mother of $20,000 per month from January 1, 2023 until and including August 1, 2032.
I require further calculations and submissions from the parties to determine the Father’s retroactive spousal support obligations to the Mother.
I dismiss the Mother’s claim to exclusive possession of the Home and order its partition and sale.
I give the parties one month before listing the Home to negotiate the terms of the listing and if they wish, the sale of the Father’s interest in the Home to the Mother.
Any sale transaction to a third party shall not close before August 2, 2023, unless the parties agree otherwise.
I set out the manner in which the proceeds of sale of the Home to a third party shall be distributed, including the payment of the parties’ Home Equity Line of Credit, a partial holdback of the Father’s proceeds of sale of the Home to cover his equalization and other financial obligations to the Mother and the release of funds to her.
I reserve the issue of costs until all financial issues are finally determined.
Background
[24] The parties met in high school in Welland, Ontario. They dated in high school but as set out below, separated in university and then reconnected. They began to cohabit in or about July 2005. They married on February 18, 2006 and separated on February 24, 2020. In this decision, I describe the date of separation as “V-Day”, which is short for the valuation day that applies to their equalization claims. Following V-Day, the parties continued to cohabit until the Father moved out of the Home on January 2, 2022. As set out above, they have two teen-aged daughters, who will turn 15 and 17 in June, 2023.
[25] Both parents grew up in Welland, Ontario. Each was the product of a close-knit nuclear family. Each is close to their parents and a sibling; the Father to his brother, the Mother to her sister. The parties met in grade nine and began dating in grade twelve or thirteen. They continued dating for about three years. Each was ambitious in their own way. The Mother was a studious young woman who, at one point, even tutored the Father. He was athletic as well as bright and entertained dreams of an American college hockey scholarship.
[26] The Mother speaks broadly of the Father’s IPV. Yet, the only incident which can be described as actual, intentional physical violence by the Father against either the Mother or the children occurred when the parties were both eighteen and long before the children were born. The parties were in grade thirteen and dating. The Mother says that she was sitting in the Father’s bedroom when he questioned whether she had gone through his things. She says that he placed his hand on her neck, an event she found to be threatening. The Father strongly denied doing such a thing. No other evidence about this alleged incident was presented to the court.
[27] After high school, the Mother attended the University of Toronto, where she enrolled in a physiotherapy course. There, she received a number of academic awards. Upon graduation, she commenced work on a Master’s degree in physiotherapy. Before she completed that programme, the Mother was admitted into the McMaster University Faculty of Medicine. There, she trained in her present medical specialty.
[28] The Father’s hopes of a hockey scholarship did not pan out. He first went to Brock University on a partial scholarship and then to the Royal Military College, where he received room, board and tuition. There, he mixed athletics, academics and military training.
[29] The parties dated until after end of the Mother’s third undergraduate year. Even after breaking up, they managed to remain in touch.
[30] After he graduated, the Father joined the Canadian Armed Forces (“CAF”), where he served two tours of duty. One was in Bosnia while the other was in Afghanistan. His Afghanistan tour began at the end of 2001 and lasted for about eight months.
[31] While in Afghanistan with the CAF, the Father served as a captain and platoon leader, responsible for 40-50 people. His platoon was assigned to reconnaissance. While he was trained in the use of a rifle and hand-to-hand combat, he was adamant in his testimony that he never fired a weapon in combat and never came under fire. Nor did he ever kill anyone. All members of the Father’s platoon returned safely to Canada.
[32] The Mother’s view of the Father’s abusive nature appears to arise, at least in part from her view of his service in the CAF and in particular, his time in Afghanistan. While he presents a benign view of his time in Afghanistan, the Mother believes that he was engaged in real and brutal violence at that time. In her intake form for the original s. 30 assessment by Dr. Radovanovic, the Mother wrote:
I believe there is the potential for physical abuse and violent behaviour with the children based on his behaviour on his background of intense military training and violent experience therein. [The Father] has had a longstanding interest in weaponry, is a hunter, and has had intense military training, including with the now disbanded Airborne Regiment. He is trained to administer and withstand interrogation and both emotional and physical torture. Further, he is a trained sniper and killer, deployed to Bosnia and Afghanistan. While in Afghanistan, he killed men by sniper shot as well as "cleared caves", which involves man-on-man killing by throat laceration and resultant exsanguination. [The Father] then collected DNA from the corpses post-mortem after they had exsanguinated. When interviewed by a local newspaper upon his return, he was quoted as saying that his experience in Afghanistan was "nothing but fun". All of this is on a background of the possible neuropsychiatric manifestations of having taken an anti-malarial medication when deployed as well as multiple concussions while boxing and playing hockey in his younger years, makes me extremely concerned for the well-being of my daughters.
[33] The Father denies all of this. In addition to denying ever firing a weapon in combat, he points out that the notorious Canadian Airborne Division was disbanded two years before he joined the CAF. No evidence has been provided to contradict the Father’s narrative.
[34] Nonetheless, in a text to the Father while they were still living together she wrote of “predatory behaviour” that she seems to have attributed to his time in the CAF, as follows:
It is well known that experience in a combat zone, especially in the setting of taking human lives and witnessing human lives being taken in a violent setting, can lead to behaviors and issues long after military service. As I have mentioned before, part of the negative cycle of this marriage has to do with your oftentimes predatorial behaviour towards me including berating, sneaking, lying, gaslighting, swearing, waking me up at night, trying to break into my phone, and threatening looks and gestures, that, as I’ve expressed, have concerned me that you were going to be violent towards me.
[35] When the Father’s tour of duty in Afghanistan ended, he returned to Canada, where he joined the National Defence Headquarters in Ottawa. There, he was able to complete his MBA degree. After retiring from the military in 2005, the Father took a job at a major bank, where he managed to climb the corporate ladder to his present leadership role.
[36] While the Father was in Ottawa and the Mother in Hamilton, they reconnected and began dating anew. Later, after gaining an Associate’s position with his employer bank, the Father purchased a condominium unit in downtown Toronto. That unit was near the hospital in which the Mother was working on her fellowship. The parties shared the condo. The Mother soon became pregnant with their first child, A.
[37] The Father worked five-to-seven days per week at the office. His hard work was rewarded. After three years as an Associate, he was promoted to Vice President, a title held by hundreds at his employer bank. Three years later, he was promoted to a Director position. Three years after that, he became a Managing Director. His job involved long hours and much travel; both to his employer’s downtown Toronto office as well as abroad. He still works long hours and travels for work, but less so than in previous years.
[38] The parties became engaged in January 2006 and married the following month. A. was born about five months later. At the time, the Mother had just finished her fellowship and took an eleven-month maternity leave. In May 2007 she joined a group practice with other physicians practicing in her specialty. That practice was associated with a local teaching hospital in Hamilton. In correspondence with the group practice, the Mother expressed the desire to work three days per week. She has done so ever since she began work with that group practice.
[39] The downtown condo that the parties shared became very cramped following A.’s birth and the frequent presence of the maternal grandmother (the “Grandmother”). Less than a year after A. was born, the parties moved to a townhouse in Burlington, somewhat equidistant from each parent’s place of work, but slightly closer to that of the Mother. The move occurred while the Mother was still on her maternity leave.
[40] One evening while pregnant and asleep, the Mother says that the Father punched her in the chest. She adds that she woke up with him on top of her. Yet she concedes that she believes that the Father was also asleep at the time. This is the other incident of alleged physical violence to which the Mother testified. The Father says that he knew nothing of the alleged punch as he presumes that he was asleep at the time. In fact, he claims to have been unaware of the alleged incident until he read about it in Dr. Radovanovic’s Assessment Report.
[41] B. was born two years after A. The Mother took a one-year maternity leave. The Father took no time off work for the birth of either child. He explains that he was studying for his Certified Financial Advisor exams. He says that he did what he could.
[42] In February 2009 the parties purchased the Home.
[43] The Mother testified that in or about 2009, at a medical school reunion party, the Father became drunk and jealous of her, believing that she was flirting with other men. She says that the Father called her a “disgusting slut”. The Father was not confronted with that allegation in cross examination. But the parties’ brother-in-law, now separated from the maternal aunt, was the Mother’s medical school classmate and present at the party. He testified that the Father had been drinking that night and was acting “carefree”. But he did not think that the Father had been acting out of character. He had previously deposed in his trial affidavit that he had never heard the Father “say something that crossed the line”.
[44] The Father testified that after the children were born, the Mother refused to allow anyone but her mother, the Grandmother, to care for them in the parents’ absence. However, the court heard and received evidence demonstrating that the Mother arranged for other caregivers for the children.
[45] There is no question that the parents adopted a somewhat traditional division of labour during the course of their marriage. The Father worked long hours as the primary breadwinner. The Mother was the primary caregiver even though she earned a significant income on her own with her part-time medical work. She took a one-year leave of absence following the birth of each child. She guided the children in their academics and activities. There appears to be no question that as the children aged, they became closer and more aligned with the Mother than the Father. Each daughter spent the lion’s share of parenting time with the Mother.
[46] The Father only occasionally watched the children on his own. One of his main parenting roles, particularly when the children were younger, was on family trips. He described vacation time as “sacred”, in no small measure because of his long work hours. Many of those trips were to Florida with the Mother’s sister, brother-in-law and their children. Those trips included visits to Disneyland and Universal Studios. The family also visited London, San Francisco and Hawaii.
[47] The Father testified about his desire to engage in what he called “logistical planning” to make the trips special for the children. He prepared activity books for each trip, complete with stickers and activity checklists and a cartoon tour guide of his devising, named Winona the Wise Owl. This practice ended as the children got older.
[48] In his testimony, the Father complained about what he saw as the Mother’s overzealous safety concerns and micromanagement of the children. This factor is relevant because Dr. Radovanovic and a counsellor who assisted the family after the separation, Lourdes Geraldo, both reported that the children do not see their Father as a “safe or competent” parent. The Father complained about the safety lists and notes that the Mother made for the family. He criticized her alleged overreactions to events, such as A. spilling water on her laptop, leading to the Mother fearing for the child’s electrocution.
[49] The Mother does not deny being safety conscious, perhaps being overly so. As she points out, that is the nature of both her profession and her personal approach to safety. She adds that the Father misinterpreted her self-deprecating humour, as expressed in an old list of her safety instructions which he saved and brought to court to prove his point.
[50] Speaking to the Mother’s level of control of the children, the Father also complains about the broad range of activities to which the Mother signed up the children, leaving little time for anything else. They included both enhanced academics and sports, in each of which the children excelled. Both are excellent, accomplished and well rounded young women. They have won various academic and athletic awards. On graduation from grade eight, each won awards that put them at or near the academic top of their class.
[51] There is no dispute that the Mother is the one who arranged the enrichment and extra-curricular activities that led to the children’s achievements. She was available to assist the children, whether with daily homework assistance or transport to their activities (a role shared by the Grandmother). The result may have been that the Father felt increasingly excluded because he was not around the children a great deal. On the other hand, the children have adopted their Mother’s single-minded approach to achieving results at school and in the other spheres of their activities.
[52] While proud of his children, the Father contends that the Mother diminished and demeaned his lesser involvement with the children and his lack of knowledge of their schedules. He says that this disparagement often occurred in the presence of the children, who absorbed the lessons of their Mother’s criticisms. The Mother denies this but claims that it is the Father who was verbally abusive and controlling.
[53] The distance between the parents, as well as their feeling of being ill-treated by the other, increased over time. One key event that led to the parties’ separation occurred during a long drive during the Easter 2019 weekend. The family had travelled to Welland to visit both sets of extended families. On the way home, the parents engaged in an argument in the presence of the children, who were listening to their personal devices through their headphones. The parents’ varied descriptions of the argument are indicative of the bridge that continues to exist between them.
[54] The Father presents an anodyne conversation that the Mother turned into an ugly argument. He testified that he was in the front passenger seat as the Mother drove. He was looking something up on his phone when the Mother turned to him and asked: “are you going to F’ing answer me or what?” In his narrative, a “light switch went off” for him when he heard this. He responded: “why don’t we just end it [i.e. the marriage]?” He wanted to complete the conversation at home, but the Mother never joined him for the discussion. The Father asserts his belief that the children did not overhear this conversation through their headphones. Nonetheless, he believes that from this point onward, the Mother began to turn the children against him.
[55] The Mother offers a starkly different narrative. She agrees that the family was in the car together, returning from Welland. She was driving. At some point on the Burlington Skyway, A. was working on a history assignment in the backseat, while B. was asleep. A. asked the Father a question, which he did not answer. The Mother asked whether he had heard the question. He answered that the Mother mumbles, and moved his hand in front of her eyes. She responded that he looked like he is going to slash her throat. He responded that she should get a life and that she is a loser. He then spoke of separating. When they got home, the Father wanted to speak to her alone, but A. heard this and advised her not to go down the stairs to speak to him.
[56] The Father does not say what he was looking up, but the Mother’s narrative makes sense in that he was looking up something for A. That also explains why the Mother would react to the Father’s silence when he was doing the search on his phone. But since it was A. who raised the question, it is logical that she would have overheard the argument since she was awaiting the answer. Further, from the Mother’s narrative, A. was already aligned with her, as the child advised her not to speak to the Father that night.
[57] The parties would not actually separate for almost ten further months, on February 24, 2020. Nonetheless, the Father says that in the weeks and months that followed the Easter 2019 argument, the children’s behavior towards him changed dramatically. By May/June 2019, A. would no longer allow him to give her a hug. In addition, their little routines changed. When he would approach A. to tell her that he loved her, she would move away from him
[58] The Father testified that when he raised the issue with the Mother, she offered various excuses, including attributing any change in A. to puberty. He portrayed her response as akin to gaslighting him. The Mother testified that she was shocked when he made the claim. She did not know what he was speaking of. She adds that the Father soon began to “hyperfocus” on the children. She recounts that they told her that dad would keep asking them what is wrong and why they did not want to talk to him. A. told her that she did not want to be in the car with him because of the questions.
[59] The Mother testified that the children told her that the Father complained that the children were “treating [him] like shit”. She said that A. described the Father as “hovering” around her. The Mother noticed that the children were closing their doors when he was around. She described the Father’s behaviour as “stalking”. She offered no evidence of any steps to mend fences between the Father and the children even strongly encouraging the children to reconnect with their Father.
[60] The parties attempted marriage counselling in the months following the Easter 2019 argument but little was resolved. The Father describes an event over Christmas 2019 when the Mother’s family were at his home and the children gave everyone but him hugs. Their maternal uncle asked: “what no hugs for [the Father]?”. The Mother did nothing. The same thing happened that New Year’s Eve.
[61] During a February 20, 2020 session with a marriage counsellor, Dr. Champion, the Father read a breakup letter to the Mother. They separated four days later, on February 24, 2020 but did not tell the children. They resided together in the same home for over twenty-two more months.
[62] Despite their separation, the family took a previously scheduled family holiday to the Turks and Caicos Islands between March 13 – 15, 2020. It ended when the pandemic set in. While swimming in the ocean, A. refused to allow the Father to join her. He thought to himself that the ocean wasn’t big enough for the two of them.
[63] When the family returned to Ontario, the Father’s office was closed because of the pandemic. He had to work at home. The situation was clearly tense and getting more so. A. in particular was resisting his attempts to have any contact.
[64] In June 2020 the Father rented a condo unit for himself. But he would not move out for about another year and a half. That time further poisoned the relationship between the Father and the children.
[65] In March 2020, the parties agreed to meet with Lourdes Geraldo, a respected social worker with expertise in high-conflict separations. While Ms. Geraldo was a participation expert in these proceedings, she has previously been qualified in other court proceedings as a social worker with expertise in parenting assessment and reintegration therapy.[^7] Ms. Geraldo was asked to assist the parties in determining the manner in which to announce their separation to the children. The parties signed a retainer for those services in April 2020 and proceeded with two sessions.
[66] In May 2020, the parents sought Ms. Geraldo’s assistance with reconciliation therapy. Ms. Geraldo recommended a dual-track process of parallel counselling and assessment. The Father quickly agreed to those terms. He signed Ms. Geraldo’s retainer form on or about May 15, 2020. Nothing further occurred regarding counselling for almost two months, until July 10, 2020. At that time, the Mother’s former counsel sent a black-line revised version of the retainer form to the Father’s counsel. Her counsel had effectively rewritten the agreement. One of the changes was a term spelling out that ensuring children’s physical and psychological safety was a goal of therapy. Another new term set fixed periods of time at which the counselling would end. That period was six months or the commencement of a s. 30 assessment. This was contrary to Ms. Geraldo’s suggested dual-track process, which would have continued during an assessment. Nonetheless, the Father accepted the Mother’s revised terms and commenced counselling in August 2020.
[67] By September 4, 2020, both parties had signed a retainer agreement for Dr. Radovanovic’s s. 30 assessment. On October 9, 2020, the parents informed the children of their separation, using a script they had worked on with Ms. Geraldo. The further counselling with Ms. Geraldo lasted only about three months, with little progress being made.
[68] On December 14, 2020, Ms. Geraldo resigned her counselling role, after the Mother’s counsel wrote a sharply worded four-page letter. The letter accused Ms. Geraldo of bias and prejudgment against the Mother. It stated that Ms. Geraldo had assumed that the Mother had alienated the children. The letter further accused the therapist of ignoring the Father’s
…history of domestic violence/abuse/coercive control and his abusive and insensitive conduct towards [the children] and their witnessing his abusive conduct/use of coercive control towards their Mother, resulting in their discomfort and fear of him.
[69] In the face of a letter like this, whatever the merits of these complaints, it was impossible for Ms. Geraldo to continue working with this family. It effectively fired her. In her trial testimony, Ms. Geraldo denied having determined the presence of parental alienation in this family. She was taken aback by the allegations of bias leveled by the Mother’s counsel.
[70] Having considered all of the evidence at trial, I do not find that the accusations against Ms. Geraldo were warranted. It was well outside her therapeutic remit to investigate the Mother’s allegations of domestic violence or coercive control. Nor was she required to determine whether the Mother was an “alienator”. She was not retained as an assessor. Instead, she was presented with two parents holding diametrically opposed views of both their marriage and their responsibility for the children’s views of their Father. Her job was to offer therapy, not to take sides. Judging from the evidence, she attempted to do just that in the short time before her retainer was effectively terminated.
[71] Ms. Geraldo worked with the family to repair the children’s relationship with their Father. But she could not ignore the manifest alignment between the views of the children and the Mother, which were also shared by two others close to the children, the Grandmother and the maternal aunt.
[72] That symmetry of views between the Mother and the children was manifested in their shared concern that the Father was not a “safe or competent parent”. They also shared the view that they had no need to change. Rather, it was the Father who needed to do so. Ms. Geraldo opined that until both parents recognize that this is a concern and come to a common view of the children’s needs and their roles, the children’s perspective regarding the Father would not change.
[73] Ms. Geraldo felt that her proposed dual-track process, if continued, could have provided the children with a supportive opportunity for therapeutic contact with the Father. It may have “reinforced the importance of maintaining a relationship with him and have their concerns heard and processed in an emotionally safe manner.” She believed that the “multi-faceted family systems approach” reintegration therapy she offered would have supported all family members (and not just the Father) “to participate and reflect upon the changes that [they all] need to make in order to develop healthier coping strategies and healthier parent/child relationships.”
[74] One never knows whether the relationship between the children and the Father would have evolved to a better place had Ms. Geraldo’s mandate not been prematurely terminated. But crucial months went by before a new form of family therapy was commenced with the child psychologist, Dr. Irwin Butkowsky. That course of therapy has not borne fruit. Similarly, one never knows whether the children’s relationship with the Father would have improved or at least not deteriorated so severely, had he moved into his condo when he rented it in June 2020 rather than in January 2022.
Assessment Report
[75] Dr. Radovanovic began her first parenting assessment in or about November 2020. The formal order for a s. 30 assessment would not be made until April 23, 2021. Dr. Radovanovic completed that first assessment on May 17, 2021 with a disclosure meeting. Following that meeting, the parties agreed to immediately implement phase one of Dr. Radovanovic’s recommendations. However, her Assessment Report was not issued until July 26, 2021.
[76] The Assessment Report was lengthy (117 pages) and comprehensive. It included ten interviews with each parent, five interviews with the children (including one interview with the children and each of the parents together), nine interviews with personal collateral contacts and eleven interviews with professional collateral contacts. It also included psychometric testing of each parent by another clinical psychologist, Dr. Daniel Fitzgerald.
[77] As set out below, I do not follow all of Dr. Radovanovic’s recommendations. That is in large measure because of the differences between her approach to best interests as a psychologist and that of the law. That is particularly the case regarding the rights of older, mature children to have a say in their parenting arrangements. Nonetheless, I find many of her observations and much of her analysis regarding this family to be astute and persuasive. Accordingly, I repeat many of her observations and conclusions below:
Regarding the Mother
The value of academic achievement was transmitted by the Mother to the children and displayed in her commitment to the children’s learning and extracurricular opportunities, She appeared to go above and beyond in supporting and ensuring academic excellence and success. She is an extremely committed and dedicated parent, who made the children the focus of her life. She was extremely knowledgeable about all aspects of the children’s lives.
During interviews, the Mother “showed a consistently and highly negative and suspicious view of [the Father]”. She had little positive to say about his parenting or relationship with the children. Dr. Radovanovic described the Mother’s approach to evaluating the Father’s parenting as “damned if you do, damned if you don’t”. The Mother was critical of his attempts to approach the children to tell them that he loves them, which she saw as intrusive if the children did not want it. Yet she was also critical of his absences from the Home (when the parties were separate and apart in the Home) without notice.
Dr. Radovanovic described the Mother’s manner towards the Father as “hyper-vigilant, highly suspicious and anxious” towards him. The Mother felt that the behaviours she complained of were related to the Father’s “intense military training and violent experiences”. Dr Radovanovic described this view as “far-fetched and not directly relevant to the behaviours [the Father] showed during the marriage”, as described to her. The Mother had attributed the Father’s persistence and “over-questioning” to “interrogation tactics” he learned while in the military. As Dr. Radovanovic commented, they were more likely tied to the distrust and tension of the family’s home situation. The Mother also claimed that the Father suffered from PTSD,[^8] because he lunged in his sleep when startled. Dr. Radovanovic felt that the more likely explanation for his behaviours is stress or sleep disturbance.
The Mother displayed a “consistent and pervasive tendency… to use extreme descriptors” for the Father, such as “predatory behaviour”, “misogynistic”, “abusive”, and “gaslighting” She felt that his alertness to the children was “predatory”. But her explanation for the use of those extreme descriptors was “vague”. Her explanations did not fit the extreme characterizations she offered. Many spoke to her reactions to his behaviour, such as the intensity of his stare, his “glaring look” or his critical response to her views. A. in particular adopted the Mother’s approach to the alleged malevolence of the Father’s gaze.
At trial, Dr. Radovanovic pointed out that everyone has their own look, to which others can react in their own way. Dr. Radovanovic felt that this was a misperception of the intensity of his facial expression.
The Mother and children’s preoccupation with the Father’s “creeping around” the house post-separation “appeared unjustified”. He often kept to himself in the Home because he was “shunned” by the children.
One event which the Mother recounted to explain some of her “suspicious attitude” toward the Father took place in 2019, during a time of high marital stress,. The Father took her phone to determine whether she was having an affair. This led to a confrontational exchange in front of the children.
The Mother presented as dismissive of professionals who did not share her view of the Father, whether previous marital counsellors or Ms. Geraldo. She suspected them of being manipulated by the Father.
Dr. Radovanovic described the Mother’s approach to intervening with the children to encourage visits with their Father as “inconsistent (largely passive and infrequent) and cautious”. The Mother’s rationale for this passive behaviour was a fear of being labelled “controlling” of the children. Dr. Radovanovic described the steps that the Mother had taken to address the children’s reticence towards their Father as “superficial and minimal”.
Dr. Radovanovic saw the Mother as experiencing difficulty separating the Father as a spouse and a parent. Her own anxiety and beliefs inhibited her from “supporting the [children’s] relationship with their Father in a meaningful and consistent manner”.
In a similar vein, Dr. Daniel Fitzgerald, who performed psychometric assessments of the parties, opined, that the Mother may have difficulty conveying the value of a balanced and meaningful relationship with the Father to the children. He arrived at this opinion based on both testing and his interviews of the Mother,
Regarding the Father
Dr. Radovanovic opined that the Father reacted to his situation regarding the children better than most. “There was less focus on holding [the Mother] responsible for the family problems and a reluctance to cast blame”.
The Father exhibited a “balanced” view of the Mother. He “showed capacity for insight and was able to reflect on his behaviours and acknowledge some mistakes that he had made.” He spoke of his too frequent questioning of the children for their change in attitude towards him, making them uncomfortable and distressed. He also spoke of his work-related lack of availability as contributing to the current situation.
The Father admitted to looking at the Mother’s phone because he suspected an affair. However, he denied the Mother’s allegation that he used spyware or other surveillance of her.
The Father minimized his past inappropriate and frustrated reactions to the children. The children had spoken of observing the Father speaking negatively about the Mother, rhetoric that he downplayed as being playful.
The Father’s psychological testing profile, as reported by Dr. Fitzgerald, did not display a tendency towards impulsivity, reactiveness, volatility, or aggression. There was no evidence of a tendency towards dominance and control in relationships, even though he may react in an adversarial or irritable manner when stressed or frustrated by events out of his control.
Regarding The Children
A.
A. “appears to be an anxious, talented teenager and over-achiever who has perfectionistic tendencies. She resembles the Mother in these characteristics”. A. also “seemed to be a sensitive youngster who could be very emotionally reactive. [A.] appeared to be burdened by the family circumstances”.
A. was very prepared for her interviews, often referring to notes. She was repetitive in offering her points and stories.
A. described the Father in “extreme ways”, using terms such as “scary”, “aggressive” and “stranger”. Yet the examples that she used to fit those descriptors did not match them.
A. was angry with her Father for not being around at home or her activities, like other fathers and the Mother. A. compared him very unfavorably to her Mother. Yet A. also derogated him for his attempts to communicate, post-separation. She portrayed those attempts as too little, too late. She felt that a child should not be placed into a position where they have to change.
A. said that she was “scared” when the Father approached her to discuss their lack of physical interaction (like hugs). He was “angry”. A.’s response to him was that it was “just a phase”. He responded that those words were “right out of your Mother’s mouth”. A. described this as a “huge moment” and a “red flag” for her. Parenthetically, I note that that Mother offered the Father the same answer when he approached her about the same issue.
After her Father left her room following the interaction cited above, an upset A. spilled water on her laptop. This “freaked out” the Mother, who claimed that A. could have been electrocuted. Although she was barely communicating with her Father at the time, A. said that this event changed her outlook on him. In her words, “that’s when I said ‘wow’ … and ‘realized’ about him”.
Dr. Radovanovic wrote that A. “seemed to blame her Father excessively and illogically”. She described this as a “distortion”. A. subjected the Father to the same “damned if you do…” bind that the Mother applied to him.
A. recounted to Dr. Radovanovic that the Mother’s response to her rejection of the Father was to “do what I feel is right; to stand up for what is right for me”. The Mother also told her to “stand up for [her] boundaries” regarding speaking to the Father. A. saw this as equivalent to the Mother’s advice about standing up to a school bully. Yet A. also said that her Mother wanted her to have a better relationship with the Father.
A.’s approach is highly protective of the Mother in regard to her Father. For example, she spoke of “the look on mom’s face as he tries to get back in our lives”.
Dr. Radovanovic observed that A. displayed “‘black and white’ thinking about the relationship problems and dynamics in the family”. She displayed “a lack of mature social reasoning and lack of balance when it came to this very emotional topic.” This is likely uncharacteristic of other aspects of A.’s life.
In a joint interview with the Mother, A. recounted the Father coming to her door the previous night to say “I love you.” She told him to walk away. But when he complied, she demanded that he return so that she could finish telling him off.
B.
Dr. Radovanovic described B. as “a very bright, friendly and engaging child”. B. is quieter than A. B. appeared to be “functioning better from a social-emotional perspective.” B. was “less stressed and troubled by the family situation or other areas of [their] life” than A.
B. is more balanced and positive about the Father than A. However, B. still expressed a concern with having to spend more time with the “wrong” parent (rather than the Mother). B. also displayed a sense of wanting to please both parents.
B. felt that the Father sometimes overreacts and takes out his frustration on the children by raising his voice. Her Mother does less of this. B felt that the Father could be too intrusive when he tried to engage with her while she was trying to do something else.
In a joint interview with the children, Dr. Radovanovic found B. to be influenced by A.’s attitude towards the Father.
Joint Interviews Between the Children and Each Parent
Following a joint interview with the Mother and children, Dr. Radovanovic observed that the Mother, “strikingly” had difficulty encouraging the children’s relationship with the Father. In fact, she provided negative messaging about him during the interview. That messaging included her desire for the relationship to be “safe”, implying its danger.
Following a joint interview between the Father and the children, Dr. Radovanovic spoke of the Father’s attempts to remind them of prior positive activities. A. was negative, speaking instead to their closeness to their maternal family. The Father cried, spontaneously apologizing for not being there for the children in the past. He did so in a manner that Dr. Radovanovic found to be genuine and remorseful. He was almost pleading, but the children were unresponsive. Afterwards, A. was dismissive of the Father’s emotional appeal. Following the interview though, A. began to cry as well. She expressed the desire not to live with or spend three days with him.
Dr. Radovanovic’s Conclusions
[78] Dr. Radovanovic offered the following conclusions in her Assessment Report:
Because of the imbalance of roles that the parents assumed during the marriage, the children developed a less secure relationship to the Father than the Mother. They require their Mother to be the bridge to their relationship with the Father. During their marriage, the Mother was able to be somewhat supportive of the relationship as long as she maintained trust in the relationship. But it was difficult to maintain this bridge due to the parents’ differing personalities, parenting styles and their diminishing trust in each other.
The Mother’s view of the Father emerged through the prism of alleged IPV. Yet the only professional interviewed by Dr. Radovanovic who supported this view was an individual counsellor who treated the Mother alone and never met the Father. However, Dr. Radovanovic did not believe that the facts supported the Mother’s level of fear and extreme concerns. The Mother’s descriptions of “fear inducing events” were “vague” and lacking in descriptions of concrete behaviours that would warrant the intensity of feelings of fear and concern.
Dr. Radovanovic felt that the Mother’s reactions and lack of support of the children’s relationship with their Father influenced the children’s reaction to him. That view was shared by Ms. Geraldo.
Dr. Radovanovic points to the fact that the Mother allowed the Father to be alone with the children prior to 2019 and that the change in children’s views of their Father coincided with the Easter 2019 argument between the parents on the way home from a visit with the two families. That is a view shared by the Father.
The Father’s sometimes awkward attempts to connect with and understand the children after the separation did not, as the Mother asserted, amount to emotional abuse. Rather, they “simply reflected a Father who was pleading and desperate to regain a connection with his children”. During the times that he overstepped in that regard, “his less sensitive parenting behaviours were magnified and judged without context by the [Mother and children]”.
Ultimately, an atmosphere of paranoia enfolded, which encapsulated the children after the subject of separation was raised in 2019. The Mother appears to have done little to correct this atmosphere.
The children’s rejection of their Father is an expression of loyalty to the Mother and their anxiety regarding how the separation would affect their relationship with her. B. was influenced by A.’s reaction and motivated by a desire to show loyalty to the Mother.
Dr. Radovanovic found the Mother’s more serious concerns about the Father’s parenting to be “unwarranted and influenced by her own anxiety, mistrust and suspicious attitude toward him”. She needs to be clearer and more consistent in supporting the Father/child relationship. Dr. Radovanovic also found that the therapist who supported the Mother’s claims of IPV without having met the Father was lacking in objectivity. That therapist “overstepped” her role by offering advice about family members whom she had not been able to hear from or evaluate.
The Father needed “to develop an increased repertoire of sensitive and firm responses for the children”. He and the children would benefit from joint counselling sessions.
While Dr. Radovanovic did not agree with the Mother’s perspective regarding IPV, she also did not agree with the Father that this was a case of parental alienation either. In her Review Assessment, she referred to this as a “hybrid” case, although she did not use the term in her Assessment Report.
[79] Dr. Radovanovic made a number of parenting recommendations for all aspects of the children’s lives. As there was no issue that the children were to primarily reside with the Mother, the key issue was their time with the Father. In that regard, Dr. Radovanovic recommended a two-phased schedule, with each phase being six months.
[80] During phase one, each child would have weekly, individual parenting time with the Father for a two-to-three hour period, to be structured around an activity or meal. In addition, there was to be a further three-hour period of joint time for both children and the Father. There was to be flexibility to extend this time to allow for contact with the extended paternal family. The second phase would have a mid-week visit from after school to 8 p.m. and one full weekend day on week 1. On week 2, the mid-week time would remain the same and the weekend time would last four hours. Dr. Radovanovic called for holiday and summer parenting time as well, although she did not call for specific days. Dr. Radovanovic also recommended five additional days during the summer holidays and extra non-overnight time on various holidays. She proposed a review of these arrangements after nine months. Looking back in her Review Assessment, Dr. Radovanovic described this plan as “a conservative, graduated parenting schedule for the children and their Father.”
[81] The Mother rejected many of Dr. Radovanovic’s findings but was willing to accept her recommendations. The Father took the opposite tack, accepting her findings but arguing that her recommendations were too modest. At an August 10, 2021 case conference, he requested that Conlan J. grant him increased and overnight summer parenting time with the children. He had booked a Muskoka resort for two weeks and asked that the children be required to join him during that time. Conlan J. found that this was the rare case that called for a non-consensual substantive order at a case conference. But he did not give the Father all that he requested. Instead, he ordered that the Father have day parenting time at the resort over the two weeks he had booked it. He did not order overnight visits because Ms. Geraldo had reported that the children did not regard the Father as a safe or competent parent.
[82] While the Father had asked for an order requiring the Mother to do all of the driving to and from the resort, Conlan J. did not make that order. But he did strongly encourage her to do all she could to maximize the children’s time in Muskoka, including splitting the driving to the resort.
[83] The children did not attend the resort on all fourteen days. A. attended on the first day but refused to return. B. attended on four other days. Each time the Mother picked the child/ren up. In both his trial evidence and through his counsel’s cross-examination of the Mother, the Father complained that the Mother’s driving was a form of control. But as set out above, it was actually something that he had requested and which Conlan J. had strongly recommended.
[84] On December 20, 2021, the Father brought an “urgent” motion for holiday parenting time. The motion came before me. I found that there was no urgency. The September 23, 2021 consent order of Chozik J. actually dealt with Christmas parenting time. It called for adherence to Dr. Radovanovic’s recommended schedule, with minor adjustments and no overnights. Yet the Father still pushed for an order granting him overnights. Instead, I ordered daytime visits from 10:00 a.m. – 6:00 p.m. on December 21-23 and from 6:00 – 8:00 p.m. on December 26, 2021. That was close to what the parties had already agreed upon. I also ordered the Father to pay costs of $6,000.
[85] On January 2, 2022 the Father moved out of the Home. He moved into the condo that he had rented a year and a half earlier. He claimed that his parents paid the rent for the empty unit. His father corroborated that claim in his testimony at trial. That still begs the question of why the paternal grandfather would do that when the Father was earning a seven-figure income.
[86] During his testimony the Father answered a related issue, why in the face of the toxic environment in the Home, he remained there for a year and a half after renting the condo unit. He explained that he feared that he would never see the children again. But he was represented by very capable counsel. He had to know that that was not the case. Unfortunately, his decision to remain in the Home backfired. The longer that he stayed in the Home, the more his relationship with the children deteriorated.
[87] On February 1, 2022, the parties agreed that the Father’s parenting time would be every Wednesday from after school to 9:30 p.m. and alternating weekends from Friday after school until Sunday at 7. The following day, Conlan J. denied the Mother’s motion for the appointment of the Office of the Children’s Lawyer to represent the children, feeling that they had already been placed in a difficult position regarding their parents. He ordered that the Mother pay costs of $15,000.
[88] On February 16, 2022, the Father moved for partition and sale of the Home, just six weeks after he moved out of it. I dismissed the motion, finding that it was premature and should be taken up at trial. I ordered that the Father pay costs of $10,000.
Updated Assessment
[89] Dr. Radovanovic commenced her assessment update on March 1, 2022. She released her Update Report just over two months later, on May 9, 2022. She began by summarizing her previous findings, explaining that:
this was a hybrid case of parent-child contact problems. There was a lack of evidence to substantiate Mother’s claims of coercive control and Interpersonal Violence (IPV). There was a lack of evidence to substantiate Father’s concerns about alienation. There were many factors which contributed to the family problems and contact problems: family history; the nature of the parent-child relationships; parent conflict and parenting style differences; Mother’s anxiety and hypersensitivity; and individual temperamental features in the children.
[90] In reviewing the situation since the original assessment, Dr. Radovanovic pointed to two main developments. First, the children continued to refuse overnight parenting time with the Father. Second, in February 2022, the children’s paternal uncle took it upon himself to send the children a group text that contained a newspaper article about a parental alienation case. The case cited in the article resulted in a parenting reversal of the subject children from their Mother and a subsequent blackout period.[^9]
[91] The paternal uncle testified at trial that the Father had provided him with a copy of Dr. Radovanovic’s Assessment Report. He was concerned about the children being alienated from his brother, the Father. He was very apologetic about the effect of the article on the children and the Father.
[92] The article threw the proverbial cat among the pigeons. It greatly upset the children with the prospect of a similar parenting reversal, even though the Father was not seeking such a result. The children were close to their uncle and wondered why he would send them such an article.
[93] To be clear, the Father had nothing to do with the original distribution of this article, but it heavily rebounded against him in the eyes of the children. The receipt of the article represented a setback in any reconciliation process for the children. Both were concerned that they did not receive an adequate explanation from the Father about why his brother sent the article to them and what it meant for them.
[94] As trial testimony disclosed, the Father found out before the Mother that the article had been sent to the children. But he did not inform either her or Dr. Radovanovic. Had he done so, they may have been able to engage in earlier damage control. Ultimately, Dr. Radovanovic counselled both parents regarding an appropriate response to the article. Dr. Radovanovic had no criticisms of the Mother’s response to the article, as she followed the assessor’s recommendations.
[95] The Review Assessment was less comprehensive than the original Assessment Report but built upon its findings. Dr. Radovanovic interviewed the parents and children a number of times in order to update the circumstances cited in her first report. She interviewed each child, both together and with each parent. She also interviewed three collateral witnesses, two of whom counselled the Mother, and one who counselled the Father.
[96] Dr. Radovanovic pointed to the polarization that had affected the parents and children and their mixed responses to her earlier assessment. Neither parent appeared to Dr. Radovanovic to “appreciate the complex, interactive set of factors contributing to the family problems described in the original Assessment”. She spoke of the parent’s unhelpful “black and white thinking”, which found its parallel in A.’s reasoning.
[97] The assessor pointed to how each parent blamed the other, focusing on the other’s role in the family’s problems. Each wanted to show that their theory, whether IPV or parental alienation was the more accurate approach. Both parents, but especially the Father “minimized the influence and impact of situational factors and events that shaped the current family difficulties”. But the children had overheard what they understood to be their Father blaming the Mother.
[98] In the nine months since the first assessment, Dr. Radovanovic found that the Mother had made some gains in the “key factor” of manifestly supporting the children’s relationship with the Father. But her continuing focus on IPV issues, with the support of her counsellors, inhibited her progress. She still displayed a lack of insight into her role in the children’s relationship problems with the Father. Whatever positive gains she had made had not yet translated into an increased openness by the children towards their Father. Dr. Radovanovic felt that the Mother needs to do yet more “to confidently expect and promote more expanded time between [the children] and their Father”.
[99] On the other hand, Dr. Radovanovic indicated that the Father’s role in the conflict came more into focus during the review Assessment. That role had been, in the assessor’s eyes, somewhat overshadowed by that of the Mother. But his lack of sensitivity to the children, his frustrated and angry reactions to them and his tendency to deflect or minimize his behaviours when questioned became clearer the second time around.
[100] The children’s differing approaches to the Father persisted from the first assessment, as did their strong resistance to overnight parenting time. A. is a “determined teenager with strong opinions”. Her views of her parents, particularly her Father, are “black and white”. Both children seemed “empowered” to choose their own schedules. In that regard, B. was strongly if not intentionally influenced by A. While their views of the Father were influenced by the Mother’s lack of clear and consistent support for their relationship with him, their reactions are also influenced by their own experiences with him.
[101] In her Review Assessment, Dr. Radovanovic grappled with the gap between the children’s right to a say in their parenting arrangements and the extent to which the best interests call for a better relationship with the Father. She saw them as quite mature, other than in A.'s reasoning and perceptions regarding the Father. She also cited the concern of the children pushing themselves further away from the Father if they felt that they had no say in their relationship with him.
[102] Dr. Radovanovic summarized her views of this dynamic tension between the children’s rights and best interests, as she perceives them, as follows:
There is legal and mental health opinion that indicates that children of this age (almost 16 and 14) should have input, perhaps considerable, in decisions about time with the other parent. There is also legal and mental health opinion that the primary parent is required to do “all they reasonably can” to ensure that time with the other parent happens. This has been delineated as beyond mere encouragement. [The children] are not refusing to go with their Father, however at the current time they are refusing overnight time.…
For reasons stated above, it is considered in the best interests of the children that a minimal expectation of overnight time with the Father is incorporated into the parenting plan. Both Mother and Father had previously agreed that alternate overnight weekend time with their children was in [the children’s] best interests. The parents need to explain to their [children] that, although they hear and respect their wishes, they believe that more extended time with their Father would be best for them to develop a more positive relationship with him and is, just as importantly, best for them.
[103] Dr. Radovanovic places the onus on the Mother for setting firmer expectations on the children for increased paternal parenting time and their behaviour towards him. She believes that the Mother’s language should be in the form of expectations rather than force or coercion. Whether the children will see that nuance is not answered in the Review Assessment. Dr. Radovanovic added that the Father too must do work of his own. He must strive to be more sensitive and patient in his responses to the children “including listening to and validating their feelings and experiences”.
[104] Dr. Radovanovic recommended a continuation of the de facto non-overnight parenting arrangements until the end of the 2021-22 school year. Thereafter the children would have alternate weekend time with the Father, from Saturday to Sunday, to be expanded to Mondays on long weekends, with the parents alternating the driving. The children would also be with the Father every Wednesday from after school till 9:00 p.m., with individual paternal parenting time on Thursdays or Fridays in which he does not have weekend parenting time. There would be further expanded overnight time over summers and other holidays and special days.
[105] Dr. Radovanovic recommended that family counselling involving the children continue with Dr. Butkowsky (although the children had withdrawn from it) and that the parents retain a parenting coordinator.
[106] The Father asks me to adopt these recommendations into an order, subject to his two “friendly amendments”, that: 1) the children have a choice as to mid-week visits if they are otherwise busy and 2) if Dr. Butkowsky is unable or unwilling to continue to counsel the Father and children, another counsellor be found.
[107] The Mother asks me to simply allow the children to choose what parenting time they wish, including whether it should be overnight. She is willing to continue family counselling between herself and the Father with Dr. Butkowsky for another year but refuses to agree to a parenting coordinator. She points to the children’s termination of counselling with Dr. Butkowsky and asks the court to respect their decision.
Dr. Radovanovic’s Contact with Father’s Counsel Prior to the Trial
[108] During the course of her evidence at trial, Dr. Radovanovic revealed that shortly before she testified, she had spoken to the Father’s counsel alone, by telephone. This was done at the request of the Father’s counsel, to assist in her trial preparation. The Mother’s counsel did not learn of this conversation until Dr. Radovanovic testified. She criticizes the joint expert’s decision to speak to one counsel alone. I can understand her concern.
[109] Any litigation or court appointed expert has a duty to provide the court with “evidence that is fair, objective and non-partisan”: r. 20.1(2) of the Family Law Rules, O. Reg. 114/99. As Cromwell J. wrote for the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton, 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 42:
The expert's opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert's independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party's position over another. The acid test is whether the expert's opinion would not change regardless of which party retained him or her.
[110] An assessor who is appointed by the court to conduct a s. 30 assessment is the court’s expert. Their assessment is intended to assist the court to determine those issues relevant to best interests where the expertise of an assessor is necessary: Haggerty v. Haggerty, 2007 ONCJ 279, at para. 7; Glick v. Cale, 2013 ONSC 893, at paras. 40-48. The assessor’s duties are to the court and to the best interests of the child/ren that are the subject of the assessment.
[111] The objectivity of the assessor and the fairness of assessment process is essential to the fulfilment of the goals of the assessment. In part, because of the trust that courts place on the objectivity of s. 30 assessors, they rarely admit “critique” evidence: M. v. F., 2015 ONCA 277, at paras. 30-34. As Benotto J.A. pointed out for the Court in M. v. F., a “critique” report has “little probative value, adds expense and risks elevating the animosity between the parties.”
[112] Implicit in this view is the understanding that a joint parenting assessment is the most salutary form of expert evidence regarding the parenting arrangement which best meets the child/ren’s best interests. It is far better than a “war” of experts, which can only drive up the cost, delay and animosity of the court process. Such a “war” would only make it far more difficult to settle. But the underlying assumption of this view is that the joint assessor is fair, objective and capable.
[113] The point is further made in r. 20.2(8), which mandates that “[l]itigation expert opinion evidence concerning…[a] claim respecting decision-making responsibility, parenting time or contact with respect to a child” be provided by a joint litigation expert unless the court orders otherwise.
[114] These authorities point to the vital importance of parenting assessors in zealously guarding against any potential questions as to their objectivity.
[115] Here, I find that Dr. Radovanovic did not intend to favour one side or one counsel over the other. It appears that she simply overlooked the fact that it was only one side that had arranged to interview her in anticipation of trial and that the other counsel was unaware of the arrangement. But assessors must be scrupulous in avoiding even the appearance of bias. Such an appearance can undermine all of the hard work and cost that goes into a s. 30 assessment and cast doubt on the integrity of vital evidence as to the child’s best interests. Ultimately, it can exacerbate the conflict between suspicious parties, thus prolonging rather than resolving the litigation.
[116] For their part, lawyers have a duty under r. 2(4) to promote the Family Law Rules’ primary objective of dealing with cases justly: r. 2(2). Meeting that objective includes ensuring that the process is fair to all parties: r. 2(3)(a). That means that they must ensure that they do not engage in behaviour that raises the spectre of the court’s witness being compromised by allegations of partiality. Experienced counsel are expected to know and do better than that.
[117] Having said all that, I do not believe that Dr. Radovanovic’s interview with Father’s counsel affected her testimony in this case. That testimony fully aligned with the evidence contained in her two reports, both prepared well in advance of that interview. Nor, having considered all of her written and oral evidence, do I see any reason to question her even-handedness. Nonetheless, in the future, experts like Dr. Radovanovic as well as counsel must be careful about repeating this error.
Credibility
[118] In assessing the evidence that I have heard, it is important to note the differences between credibility and reliability. The Father strongly attacks the credibility of the Mother, making it one of the centrepieces of his written argument. The Mother defends her credibility and points to problems with the credibility of the Father.
[119] In R. v. Sanichar, 2013 SCC 4, the majority of the Supreme Court of Canada adopted the dissent below of Laskin J.A. of the Ontario Court of Appeal, 2012 ONCA 117, which included the following instructions about the difference between credibility and reliability:
69 I accept that reliability is not the same as credibility; that is well established. Credibility has to do with the honesty or veracity of a witness' testimony. Reliability has to do with the accuracy of a witness' testimony. Many cases of mistaken identification have shown that a credible witness may give unreliable evidence.
70 The reliability of a witness' testimony is often gauged by the witness's ability to observe, recall and recount the events at issue: see A. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 41. The passage of time may have an effect on the witness' ability to do so accurately.
[120] In Sunwing Airlines Inc. v. Mora, 2021 ONSC 1376, at para. 98, Ferguson J. reviewed the applicable caselaw to offer the following summary of factors that a court may rely upon in determining the credibility of a witness:
In assessing each witness's credibility, this court should consider:
(a) the witness's demeanour: are they honestly endeavouring to tell the truth; are they sincere and frank; or are they biased, reticent and evasive?;
(b) how probable or improbable is the witness's evidence? Is it in "harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions"? Does it "make sense" and "conform to the way we expect people to behave in the circumstances?"; and
(c) is the witness's evidence internally consistent? While minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies in a witness's evidence can lead to the conclusion that the witness is not credible. There is no rule as to when inconsistencies rise to this threshold; the trier of fact "must look at the totality of the evidence to assess the impact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issue in the case".
[Citations omitted]
[121] Ferguson J. concluded her review of credibility caselaw by citing this aphorism, offered by Rothstein J. for the Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 76: “[i]n the end, believing the testimony of one witness and not the other is a matter of judgment.”
[122] One factor highlighted by Rothstein J. in F.H. v. McDougall was the consistency of the evidence offered by a witness, between what is said in the witness box and otherwise. At para. 58, Rothstein J. wrote: “[t]he trial judge should not consider the plaintiff's evidence in isolation, but must look at the totality of the evidence to assess the impact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issue in the case.”
[123] A helpful list of factors to be considered in determining credibility was offered by Fryer J. in J.M.G. v. L.D.G., 2016 ONSC 3042, at para. 41, where relying on other authorities, she wrote:
41 In Christakos v. De Caires, 2016 ONSC 702, 2016 CarswellOnt 1433, Nicholson J. summarized some aspects of the credibility assessment as set out in Re Novak Estate, 2008 NSSC 283, 269 N.A.R. (2d) 84, at paras. 36-37:
a) The ability to consider inconsistencies and weaknesses in the witness's evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness' testimony and the testimony of other witnesses.
b) The ability to review independent evidence that confirms or contradicts the witness' testimony.
c) The ability to assess whether the witness' testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 252 (BC CA), 1951 CarswellBC 133, it is "in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions", but in doing so I am required not to rely on false or frail assumptions about human behaviour.
d) It is possible to rely upon the demeanour of the witness, including their sincerity and use of language, but it should be done with caution (R. v. Mah, 2002 NSCA 99 [at paras.] 70-75).
e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. R. v. J.H. 2005 253 (ON CA), [2005] O.J. No.39 (OCA) [at paras.] 51-56).
There is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness's evidence, and may attach different weight to different parts of a witness's evidence. (See R. v. D.R. [1996] 2 A.C.R. 291 at [para.] 93 and R. v. J.H. supra).
[Emphasis omitted.]
[124] Like all conflicting evidence and narratives, I must use the tools cited above, including consistency, reference to internal and external sources of information, and common sense to determine what findings I make. In using my common sense, I remind myself that I must be careful to avoid reliance on myths and stereotypes about the manner in which allegedly abused and controlled persons can be expected to act. I must also consider the notion that credibility is not an all or nothing idea, as set out above.
The Parties’ Credibility Arguments
[125] Here, the Father portrays himself as the soul of credibility and the Mother as his exact opposite. He speaks to his admissions of his faults as a parent and his transparency in financial matters. He disclosed his hidden $442,000 “rainy day fund”, secreted in his office, discussed below. He praised the level of his own disclosure in the face of numerous requests by the Mother’s counsel.
[126] On the other hand, the Father described the Mother’s credibility as “severely compromised”. He characterized her as a “difficult and evasive witness”, unwilling to make even the most modest concession unless faced with documentary evidence. He said that after the release of the Assessment Report, she was guilty of “strident shaming” of him. At the time, she portrayed him as “cherry picking” Dr. Radovanovic’s original recommendations, while claiming that she accepted them in whole. Now, he implicitly says, the shoe is on the other foot, with the Mother opposing Dr. Radovanovic’s updated recommendations. Thus, the Father writes, the question is “whether the [Mother] can now ‘cherry pick’ what [recommendations are] palatable”. Put another way, the Father attempts to tar the Mother with the brush of hypocrisy.
[127] In further attempting to assail the Mother’s credibility, the Father places great weight on an amendment to the Mother’s Answer in the lead up to trial. He asserts that it dramatizes what he portrays as her deceit with the court.
[128] In her original Answer, dated December 17, 2020, prepared by her previous counsel, the Mother pleaded:
- Despite his long hours, [the Father’s] salary was low, so the parties predominantly lived off of [the Mother’s] salary. To make ends meet, and to pay her student debt, [the Mother] also earned extra money working as a locum radiologist at various hospitals on the weekends and during her vacation time.
[Emphasis added]
[129] In her amended Answer, dated September 1, 2022, prepared by her present counsel, the Mother pleaded:
- Despite his long hours, [the Father’s] salary was low, so the parties predominantly lived off of [the Mother’s] salary. To make ends meet, and to pay
the children’s private school tuition, [the Mother] also earned extra money working as a locum radiologist at various hospitals on the weekends and during her vacation time. [The Mother] retired her student loans prior to the date of marriage by also working extra hours.
[Emphasis added in bold; strikethrough and underline in original.]
[130] To be clear, the amendment erases the words “her student debt”, replaces them with the words “the children’s private school tuition” and then deletes those words with a strike through. The amended sentence thus reads: “To make ends meet, and to pay, [the Mother] also earned extra money working as a locum radiologist at various hospitals on the weekends and during her vacation time”. The amended sentence does not say what payment she wished to make by working extra hours. But the amended paragraph is then extended by the sentence, stating that the Mother “retired her student loans prior to the date of marriage by also working extra hours.”
[131] The Father argues that this “purported” or “supposed” amendment is not an amendment at all. Rather, it is “deceptive” and made in “bad faith”; which, of course does not change its nature as a pleading amendment. The Father asserts that the amendment represented an attempt to conceal and resile from the originally claimed reason for the overtime work: to pay off the Mother’s student loans. The existence of such loans on the date of marriage is one of the issues at trial, as set out below.
[132] The amended Answer that contained the impugned paragraph came in response to an amended Application by the Father. The Trial Scheduling Endorsement Form of Coats J. of June 7, 2022 allowed both parties to amend their pleadings.
[133] I was not advised that any objection was raised when the Mother served her amended Answer. To the extent that the Father argues that it represented an attempt to resile from an admission, the concern should have been raised earlier. Under r. 22(5), “[a]n admission that a fact is true or that a document is genuine (whether contained in a document served or resulting from subrule (4)[^10], may be withdrawn only with the other party’s consent or the court’s permission”.
[134] The issue of the propriety of the amendment was not raised until the Mother was cross-examined. The thrust of the questioning was that the Mother was attempting to use the amendments to deceive the court. Appearing surprised at the allegation, the Mother denied any intentional deception. Nonetheless, the Father’s counsel writes in her final submissions: “[t]he ineluctable[^11] conclusion on a balance of probabilities is that the ‘amendment’ was made in bad faith”, a factor relevant to credibility. With great respect, that conclusion is far from ineluctable. I say that for three reasons.
[135] First, as set out above, the Father never objected to the amendment. He never even, to my knowledge, brought his concern with the amendment to the Mother’s attention until his lawyer confronted her with it during her pointed cross-examination. Not being prepared for the issue, the Mother’s confusion was unsurprising and not a detriment to her credibility.
[136] Second, the Mother did not sign the amended Answer. In fact, she never signed the original Answer either. It is common knowledge that pleadings for represented parties are prepared by their counsel, although they are supposed to be drafted under the instructions of the party. That is in part why family law pleadings are supposed to be signed. But likely because of the pandemic, that did not occur here.
[137] Third, and perhaps even more important, for me to find that the amendment represented an attempt to deceive the court, I would have to find that the Mother’s current lawyer was in on the deception. The Mother was represented at the time of the amendment by counsel who, like the Father’s counsel, is experienced and highly respected. As set out above, that lawyer, rather than the Mother, prepared the amended pleading. She did not prepare the original Answer. I can conceive of no reason that a lawyer with a reputation for integrity and clear professional obligations of candour to the court[^12], would intentionally deceive it. No evidence points to counsel attempting to deceive the court.
[138] Sometimes, the most likely explanation is the simplest one. That is the case here. It is most likely that an error was made when drafting the amended answer. Crossing out the words “pay her student debt” and replacing them with “the children’s private school tuition” was obviously careless. It led to a sentence which reads as a non-sequitur. The change was so obvious, ill-executed and capable of detection that it could not have been intended to be deceptive.
[139] The addition of the sentence “[the Mother] retired her student loans prior to the date of marriage by also working extra hours”, does not even represent a withdrawal of an admission. The original answer does not clearly state when she paid off her student loan. Thus, I do not see this issue as bearing on the Mother’s credibility at all. The fact that Father relied so strongly on this rationale to diminish the Mother’s credibility does not enhance the strength of his credibility arguments against her.
[140] For her part, the Mother claims that positive statements that I made to her about her parenting, while asking her follow-up questions following her re-examination, are proof that I have made a positive credibility finding. It is not. The Father does not challenge the Mother’s parenting skills. He does not deny that she is a good parent per se. Nor does he question the merits of the children’s achievements, which form part of the premise of my questions. Those questions touched upon whether the Mother should have imposed consequences on the children for failing to exercise all of the court ordered parenting times.
[141] The Mother continues, praising her own level of financial disclosure. She dismisses the Father’s level of disclosure as the result of her many requests and her threat to seek an adjournment if the disclosure is not provided.
[142] Considering both sets of arguments, I am not in a position to determine the historical adequacy or proportionality of either party’s disclosure requests or their substantial financial productions. In saying this, I recognize that the Father complains that he could not obtain the income/billing records of the Mother’s group practice prior to trial. Thanks to a subpoena by the Father’s counsel, those records were finally produced by the practice during this trial. The Mother asserted that she was not intentionally withholding those documents, but rather she was foreclosed from revealing the confidential income information of her colleagues. The threat of a subpoena led to the release of the records. Since the Mother is not in charge of her group practice, I cannot rely on that delayed disclosure to assist in determining credibility, although it may be relevant to costs.
[143] The Mother also raises the fact that the Father was required to produce the records of his counsellor, Mr. Smith, but failed to do so. She points out that she produced the records of her counsellors, which were used to aggressively cross- examine her. This argument would have greater weight if not for the fact that Mr. Smith told Dr. Radovanovic that he had inadvertently shredded his notes before he was asked to produce them. The Mother was aware of this fact since it is mentioned in the Review Assessment report. Yet she still raises it to criticize both the Father’s level of disclosure and the unfairness of her cross-examination by the Father’s lawyer.
[144] I add that the fact that the Father admitted that his absences from the Home contributed to the children’s strained relationship with him hardly represents a substantial admission. To admit to something that is obvious and easily proven is hardly an admission that will tilt the balance of credibility in one’s favour. Similarly, the fact that he made full financial disclosure only shows his compliance with r. 13 of the Family Law Rules. While it certainly does not detract from his credibility, it also does not mean that his evidence should be preferred to that of the Mother.
[145] In addition to the evidence of the parents and Dr. Radovanovic, I received the evidence of six collateral witnesses, three for each party. On behalf of the Father, they were his brother, his father and his brother-in-law (married but separated from the Mother’s sister). On behalf of the Mother, they were her mother (the Grandmother), her sister and her friend. Generally, the collateral evidence offered on behalf of the Father supported his narrative and that of the Mother supported hers. In brief, their evidence did little to change the calculus of credibility for either party.
[146] The Father’s father and brother spoke of the positive parenting qualities of the Father and the manner in which the Mother, in their view, excluded their side of the family from a greater role with the children. They offered their impressions of the parties, which were very positive towards the Father far less so regarding the Mother. The Father’s brother also spoke of events in which the Father had a right to be angry at him but refrained from being physically or emotionally abusive. He explained his rationale for forwarding the article to the children and apologized for his error. He also offered what can only be characterized as submissions regarding his view of some allegations made against the Father, including financial abuse.
[147] The Father’s brother-in-law also appeared to be aligned with him but is not a direct family member or friend. He is separated from the Mother’s sister, but the impact of that situation was not explored in his cross-examination. His testimony offered some support for the Father’s position that he is not abusive, whether physically, emotionally or financially. He was present for many of the family trips that the Father valued and offered observations of the Father’s non-abusive behaviour during those trips. He was also present at the party in which the Father is alleged to have gotten drunk and denigrated the Mother and generally does not support the Mother’s narrative.
[148] The Mother’s sister and friend offered their evidence by affidavit only. As stated above the Father’s counsel was unable to cross-examine those witnesses because of time constraints. Instead it was agreed that he would stipulate that he rejects the veracity of their evidence. In reviewing the two affidavits, I note that much of their affidavits consist of impermissible oath-helping; offering a repetition of the Mother’s complaints regarding the Father. While the Mother’s sister recounts some events that she witnessed firsthand, on the whole, those two affidavits offer little corroborative assistance to the Mother.
[149] The Mother did call the Grandmother as a witness at trial. The Grandmother had some personal observations about the parties and children which, not surprisingly, strongly favoured the Mother’s position. She supports the notion of the children having the final say in their parenting arrangements and that it is the Father and not the children who must change. She did not appear open to the notion that both the Father and the children may have to change. She had little positive to say about the Father or negative about the Mother. While perhaps understandable, her testimony was so clearly aligned with the Mother that I do not see her as an objective witness regarding parenting issues.
Reasons for Scepticism About Each Party’s Evidence
[150] From all of the above, it can be surmised that I have reason to be skeptical of both parties’ arguments about their credibility in comparison to the other. My reasons include:
For the Father:
a. The Father told Dr. Radovanovic that he never used spyware in the Home. Yet the evidence is clear that he purchased a spyware kit that included both spyware and anti-spyware. The children and the Mother were aware of this fact, which he attempts to downplay.
b. The children told Dr. Radovanovic that they overheard the Father berate the Mother. He called that rhetoric “playful”. In the circumstances of this case, that rationale is not believable.
c. The Father complained at trial that the Mother was undermining his attempt to reconcile with the children during his summer stay in Muskoka by doing some of the driving. Yet he requested that she do the driving. He also knew that Conlan J.’s endorsement encouraged her to do just that, as a gesture of support for his parenting time.
d. The Father claimed that the only babysitter that the Mother would allow for the children was the Grandmother. He cited that alleged fact as proof of her level of control over the children. Yet the evidence at trial showed that the Mother had recruited a number of non-family member babysitters.
For the Mother:
a. Most of my concerns regarding the Mother’s evidence relates to her exaggerated and even hyperbolic descriptions of the Father, both in and out of court. Among the examples are the following:
(i) In her intake forms for Dr. Radovanovic, the Mother unjustifiably described the Father in words that denoted a Rambo-like character. She wrote that he has a “potential for physical abuse and violent behaviour” towards the children. She went on to speak of her physical fear of his purported potential for violence. She ascribed this in part to a brutal and murderous term of service with the CAF. Those claims are bereft of any corroborating evidence and forcefully rejected by the Father. I cannot ignore the fact that the Mother did not repeat them during her evidence in chief, other than to mention two times that she interpreted his expression as “look[ing] as if he were going to slash my throat”. Here she made no reference to any threat or gesture he had made, only his “look”.
(ii) Yet, the Mother described the Father to Dr. Radovanovic and even in correspondence directly with him, as “predatory”. Whatever faults he may have, the evidence does not disclose that the Father’s behaviour was “predatory” to her or the children.
(iii) Similarly, as set out above, the Mother spoke of the Father “stalking” her and the children in the Home between the time of separation and his moving out. Yet much of what I heard sounded like woeful and desperate attempts to engage the children, and A. in particular, about why they had distanced themselves from him. There were times that he was weepy, both with them and Dr. Radovanovic, which they perceived as threatening. Dr. Radovanovic, who witnessed one such interaction, did not share that view.
(iv) Another extravagant description of the Father offered by the Mother in an email to Dr. Radovanovic was that of “master liar and manipulator: skills he has attained from his career in the military and banking sectors”. Among his purported skills is the ability to “…manipulate, withstand and administer intense questioning”. That certainly was not the impression that he gave at trial. While he did not fold under cross-examination, he was not masterful either, as some of the comments found elsewhere in these reasons show. Further, there is no evidence that he obtained the kind of training that she described, which appears to be the stuff of master spies.
(v) Similarly, the Mother filled out an intake form with one of her counsellors, Dr. Sinclair, in which she spoke of her physical fear of the Father. She went so far as to check off a box saying that she feared that he would kill her. She also checked off a box which said that he used a weapon on her. Yet she testified that she was referring to his body and his voice, not an actual weapon. She further checked off a box that said that she was beaten while pregnant. She admitted that she was referring to the time that he allegedly punched her in the stomach, while he was admittedly sleeping. The Mother also checked off a box to the effect that he had choked her. Here, she was referring the disputed instance of neck grabbing when they were both 18 years old.
b. In considering these extreme allegations, I cannot ignore the fact that the parties lived together in a pressure cooker of a Home for twenty-two months after separating. Yet the Father never laid an inappropriate hand on or threatened either the Mother or the children.
c. Dr. Radovanovic rejected the Mother’s descriptions of the Father’s risk of violence. She pointed out that the Mother’s explanation for the use of extreme descriptors for the Father was “vague” and “lacking in detail. I do not need to rely on that observation to make the same one myself.
d. Dr. Fitzgerald performed psychometric testing of both parties as part of the original s. 30 assessment. As Dr. Radovanovic summarized, Dr. Fitzgerald found that the Father’s testing results suggest that “he is emotionally responsive and not prone to being impulsive, reactive or volatile”. Those results “do not display a tendency towards aggression” or “dominance and control in relationships”. While testing results are far from determinative, they represent another factor which the court may consider regarding the issue of the credibility and reliability of the Mother’s claims regarding the Father’s alleged tendency towards violence an abuse towards her and the children.
e. There is simply no evidence before the court that the Father ever posed a physical threat to any of the Mother or the children. Further, as Dr. Radovanovic pointed out and I observed during the trial, the Father can simply display an intense look.
f. I recognize that the Mother claims that the Father also engaged in other forms of family violence, including emotional and financial abuse. I will have more to say about those claims below. But there is little evidence that corroborates them and some evidence, including that of the brother-in-law and Dr. Radovanovic, that leads me to be careful about accepting those claims at face value.
Conclusions Regarding Credibility and Reliability
[151] In have no reason to generally doubt the credibility of either party in the sense of intending to speak honestly and not intentionally misleading the court. But each party has a very strong, subjective point of view regarding the other and the events that bring them before the court. Their evidence was filtered through that lens. Thus, and for the reasons cited above, I do not simply prefer one parent’s evidence over the other when they conflict. Rather I look to the tools cited above.
[152] That being said, I do have additional concerns regarding the reliability of the Mother’s evidence regarding the Father’s allegedly violent and controlling conduct. The issue of family violence, as defined in the Divorce Act, is a significant one. When raised, it must be closely examined. No one deserves to live under the shadow of such conduct. When present, family violence is an important consideration regarding parenting issues.
[153] But at the same time and for the reasons already cited, I cannot take the Mother’s allegations of family violence against the Father at face value. Far from it. I find that many of her descriptions of the Father’s conduct lack both credibility and reliability. For example, there is simply no evidence before me that supports the proposition that the Father poses a physical risk to the Mother or the children, although she strongly asserted that to the assessor and others.
Issue No. 1: What arrangements should the court order for the children’s parenting time with the Father?
Applicable Law
[154] In Barendregt v. Grebliunas, 2022 SCC 22, Karakatsanis J., wrote for the majority of the Supreme Court of Canada:
8 Determining the best interests of the child is a heavy responsibility, with profound impacts on children, families and society. In many cases, the answer is difficult -- the court must choose between competing and often compelling visions of how to best advance the needs and interests of the child...
9 The law relating to the best interests of the child has long emphasized the need for individualized and discretionary decision making. But children also need predictability and certainty. To balance these competing interests, the law provides a framework and factors to structure a judge's discretion.
[155] For divorcing parents, the framework and factors cited by Justice Karakatsanis are provided by ss. 16 and 16.1 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). Under s. 16.1(1)(a):
16.1(1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage on application by
(a) either or both spouses …
[156] This court has the jurisdiction to make a broad range of parenting orders under s. 16.1(4) and (5), as follows:
(4) The court may, in the order,
(a) allocate parenting time in accordance with section 16.2;
(b) allocate decision-making responsibility in accordance with section 16.3;
(c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and
(d) provide for any other matter that the court considers appropriate.
(5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.
[157] The sole consideration for the determination of parenting decisions under the Divorce Act is the best interests of the child: s. 16(1). Under s. 16(2), the court is required, in determining the child's best interests, to "give primary consideration to the child's physical, emotional and psychological safety, security and well-being," while considering "all factors related to the circumstances of the child": ss. 16(2) - 16(3).
[158] The factors that relate to the child's best interests are set out in s. 16(3) as follows:
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child's needs, given the child's age and stage of development, such as the child's need for stability;
(b) the nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;
(c) each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse;
(d) the history of care of the child;
(e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;
(f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child's care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
[159] As I wrote in Phillips v. Phillips, 2021 ONSC 2480, at para. 47: "The list of best interests factors is not a checklist to be tabulated with the highest score winning. Rather it calls for the court to take a holistic look at the child, her needs and the people around her."
Family Violence, as Defined Under the Divorce Act
[160] The court is required to consider family violence in making any parenting decision. Under s. 16(4) of the Divorce Act, a court must consider the following broad factors in its consideration of family violence:
(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor.
[161] As McGee J. points out in S. v. A., 2021 ONSC 5976, at paras. 24-25, the issue of family violence has always been an important consideration for the court, albeit one more focussed in light of the 2021 amendments to the Divorce Act:
A history of family violence has always been an important factor in the adjudication of parenting disputes. An Order for decision making is never appropriate when there is evidence that it will be misused to frustrate or control the other parent or a child in a manner that is not in the child's best interests. A history of family violence is also relevant when deciding a parenting plan, specifically, its impact on the ability and willingness of the parent who engaged in family violence to care for and to meet the needs of the child, and to cooperate with the child's other parent.
Children must first and foremost be safe in their parents' care. The Divorce Act amendments recognize this primal need in Section 16(2) by making a child's physical, emotional, and psychological safety, security, and wellbeing the primary consideration. No conduct by a caregiving parent that deliberately undermines a child's sense of safety or self should be sanctioned or permitted to continue.
[162] However, as Justice McGee also pointed out at para. 26, the post-separation conduct of a parent who has failed to allow the children to have separate feelings for their other parent can be seen as a form of controlling family violence as well.
The Parenting Time Factor
[163] A further parenting factor that this court is called upon to consider is the provision in s. 16(6) of the Divorce Act, which states that "[i]n allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child." [Emphasis added.] The previous iteration of this clause of the Divorce Act contained the same wording but also included the heading, "Maximum Contact", to describe it. Some decisions of trial and appeal courts in this province had adverted to the "maximum contact principle" as one which the court must consider in making parenting decisions: see for example, Rigillo v. Rigillo, 2019 ONCA 548; Knapp v. Knapp, 2021 ONCA 305. That view is no longer the state of the law.
[164] In Barendregt, Karakatsanis J. made it clear that there is no principle in Canadian law which presumes that maximum contact with both parents is in a child’s best interests. But as Karakatsanis J. explained:
135 These interpretations overreach. It is worth repeating that what is known as the maximum contact principle is only significant to the extent that it is in the child's best interests; it must not be used to detract from this inquiry. It is notable that the amended Divorce Act recasts the "maximum contact principle" as "[p]arenting time consistent with best interests of child": s. 16(6). This shift in language is more neutral and affirms the child-centric nature of the inquiry. Indeed, going forward, the "maximum contact principle" is better referred to as the "parenting time factor".
The Right of Older Children to Choose the Amount and Form of Contact with the Father
[165] One key issue that has been raised in this trial is the right of the children to decline overnight parenting time with the Father. The Mother claimed that right on behalf of the children, citing even the United Nations Convention on the Rights of the Child, cited below.
[166] In R.G. v. K.G., 2017 ONCA 108, at para. 67, Benotto J.A., writing for the Court of Appeal for Ontario recognized “the emerging movement to incorporate the voice of the child in all matters concerning minors”. She pointed out that “[t]he degree to which the court will follow the wishes of the child will depend upon the age and level of maturity of the child and will be subject to the judge's discretion as she seeks to determine the child's best interests.”
[167] In Michel v. Graydon, 2020 SCC 24, Martin J. wrote, in her concurring opinion at para. 77:
Today, children are viewed as individuals who, as full rights bearers and members of a group made vulnerable by dependency, age, and need, merit society's full protection.
[168] Many cases have considered the extent to which older children should have a say, a vote, or even a veto with regard to their parenting arrangements. I cite a representative sample of them below. They demonstrate the extent to which children’s right to have a say in their parenting arrangements can be both nuanced and contextual. Those rights do not simply depend on findings of bad behaviour by the rejected parent or alienation by the favoured parent. Rather, they depend on the balancing of several factors, including the age and maturity of the child/ren in question, their rights, the behaviour of each parent, and ultimately whether the court finds that the children’s best interests should subordinate their wishes and even rights.
[169] That being said, courts, of all places, cannot ignore the fact that older children have the right to a say in their parenting arrangements, even if they are contrary to the views of their elders. I should add that a number of cases show that there need not be a dichotomy between best interests and a child’s right to have a say in their parenting arrangements. A child’s growing sense of autonomy may be an important factor in determining their best interests. That does not mean that they can always dictate their parenting arrangements. But it does mean that their voice is a key component in the decision-making.
[170] In Blair v. Blair, 1995 6977, [1995] O.J. No. 2962 (Gen.Div.), O’Connor J. determined that the 14-year-old before the court lacked the maturity to decide on his parenting arrangements. He wrote that:
The court should consider the maturity of the child, the extent to which he has thought through his decision, and the factors influencing it. Ultimately, the court, and not the child must make the decision as to his best interests. The courts should not and do not slavishly follow the wishes of teenage children.
[171] In Decaen v. Decaen, 2013 ONCA 218, at para. 42, the Ontario Court of Appeal adopted the following list of factors relevant to “assessing the significance of a child's wishes”, found in Bala, Nicholas; Talwar, Victoria; Harris, Joanna, "The Voice of Children in Canadian Family Law Cases", (2005), 24 C.F.L.Q. 221:
(i) whether both parents are able to provide adequate care; (ii) how clear and unambivalent the wishes are; (iii) how informed the expression is; (iv) the age of the child; (v) the maturity level; (vi) the strength of the wish; (vii) the length of time the preference has been expressed for; (viii) practicalities; (ix) the influence of the parent(s) on the expressed wish or preference; (x) the overall context; and (xi) the circumstances of the preferences from the child's point of view…
[172] In Mikkelsen v. Mikkelsen, 2004 47774 (ON SC), Gordon J. deferred to the preferences of three children aged 16, 14 and 11 not to spend time with their father. In a decision that citied considerable caselaw, Gordon J. ultimately followed the wishes of the children, particularly the eldest one. He included the other two children in the same decision, citing the uniformity of their views (which he described as “sibling cogency”). He concluded:
91 Having regard to the ages of the children, however, and their sincere preferences, and taking into account the considerations in Section 24 regarding their best interests, any order forcing them to attend for access or counseling would not be of practical use. Nor would a custody order to the Father, however modified.
92 I decline to issue any order that would interfere with the sibling cogency of these three and for that reason and accepting that M. is mature and intelligent, I accept that his preference as sufficiently significant to leave his status as at present.
93 Even assuming some improper influence consciously or unconsciously by the Mother, there can be no finding having regard to the ages of the children except that the Mother shall have custody with access solely at the discretion of the children.
[173] In Fraser v. Logan, 2012 ONSC 4087, Johnston J. varied a custody and access order after the children, aged 16 and 13, expressed a preference not to spend time with their father. Johnston J. gave great weight to the ages of the children, writing:
65 To order the boys to continue to participate in week about access with their Father would be to invite continued violation and breach of the Order. Continued conflict involving the children is not in the children's best interests. While I cannot find on the evidence there has been parental alienation, even if I was so satisfied; given the ages of the boys it does not change the result.
66 In my view, the best way to avoid ongoing conflict is to respect the wishes of Kaelan and Ryan. That is not to say that the Father's concerns regarding the Mother are without foundation. Mother needs to continue to start continue to use all of her efforts to foster and encourage a relationship between Father and the boys. I find that it is in the best interests of both boys that they continue to have a meaningful relationship with their Father. Studies on the topic demonstrate that in the absence of a need to curtail contact, meaningful participation by both parents is in the long term best interests of children; not only now but as they move into adulthood. It is crucial in the boys best interests that Mother permit meaningful time with Father. On the other hand, Father must respect the views of his children as they grow into young adults.
[174] The decision of Johnston J. was upheld on appeal, 2013 ONCA 93, with the Ontario Court of Appeal writing:
2 Nor do we see any error in the access order. The children are almost 17 and 14 respectively. Their best interests require that their wishes be given very significant weight. Indeed before us the appellant appears to acknowledge this.
3 His real complaint before us appears to be that the respondent is not actively encouraging more access. We agree with the motion judge that it is in the best interests of both boys that they continue to have a meaningful relationship with their Father. The Mother should not impede this and indeed should encourage it. But in the end the motion judge was in our view correct, that the best interests of the children are best served by the access order he made that respects their views.
[175] In N.M.B. v P.P.K., 2019 ONSC 726, Sanfilippo J. thoughtfully considered the parenting arrangements for two children, one almost 16 and another 12. Both children had been described by the parents as “mature, clever and intelligent”. While there was a question as to the independence of the children’s views and preferences in light of the influence of one parent, Sanfilippo J. accepted their independence. He also accepted that different factors apply to each of 16- and 12-year-old children.
[176] After a detailed review of the applicable caselaw, Sanfilippo J. accepted the children’s views and preferences to primarily reside with one parent. But he did not follow their desire to terminate their parenting time with the other parent. In making those choices, Sanfilippo J. recognized the right of a 16-year-old to make decisions regarding their parenting. As he pointed out, citing the comment of Benotto J.A. in R.G. v. K.G., above, those rights go so far as withdrawal from parental control. Nonetheless, he required the 16-year-old to engage in parenting time with her Father against her wishes.
[177] Sanfilippo J. reasoned that for the children, “life-long estrangement from their father is a disproportionate consequence” to the Father’s conduct and their consequent feelings of hurt and confusion. He asserted that neither child had the right to make that choice. He explained what he saw as the limits to the near 16-year-old’s rights when they butt up against the court’s conception of best interests as follows, at para. 250:
I have fully taken into consideration that Child 1 will shortly be 16 years of age. I place a large weight on her views, given her age and evidence of her maturity. However, I have decided to include Child 1 in the required access visits with the Father to provide an opportunity for her to re-establish a relationship with him, together with Child 2's renewed access with the Father. The Children have always supported each other in their initiatives, and this is an opportunity for them to do so in restoring a relationship with their Father.
[178] That decision, as it affects the 16-year-old child, swims against the stream of authority regarding the right of a child of that age to resist being forced into unwelcome parenting time.
[179] Contrary to that decision, in Y.M.S. v. R.O.S., 2021 ONSC 6684, Doi J. took an equally thoughtful approach to parenting arrangements for a child aged 15 who had a “complicated” and troubled” relationship with his father. But Doi J. chose not to force the child to have parenting time against his wishes. The child’s father had moved to vary the final parenting arrangements for both the 15-year-old child and his 18-year-old sister, so that they would be required to live with him. He withdrew his request regarding the 18-year-old at the commencement of trial, accepting that their relationship was irretrievably broken. Doi J. refused to change the 15-year-old child’s primary parenting or even order parenting time against the child’s wishes. He found that the father’s relationship with the child would be better served by respect for the child’s boundaries. The child should be allowed to take the initiative in re-establishing a relationship.
[180] In M.C. v M.A.C., 2019 ONSC 6769, I considered the motion of a parent for access to his 17- and 11-year-old children. I found that different criteria applied to each. With regard to the 17-year-old, I did not require that she have access against her wishes. I found that forcing her would be counterproductive and contrary to her best interests, including her sense of autonomy. However, I made a different order for the 11-year-old, finding that he had a say but not a veto over his parenting arrangements.
[181] Regarding the older child, I wrote:
75 A child's age is a vitally important consideration in a court's determination of what parenting arrangements are in a child's best interests. By the time that a child reaches the age of 16, courts will not normally force the child to live with or have parenting time with a parent against the child's wishes. That understanding was affirmed by the Ontario Court of Appeal in G. (R.) v. G. (K.), 2017 ONCA 108.…
79 In Medjuck v. Medjuck, 2019 ONSC 3254, Kristjanson J. found that there was no need to obtain a Voice of the Child report for a 17-year-old. Citing G. (R.) v. G. (K.), Kristjanson J. wrote:
As a practical matter, the court will likely not make a custody and access order given his age.
80 There may conceivably be factors, including a child's special needs or a clear finding of alienation that may, in some circumstances, ameliorate the practical policy articulated by Kristjanson J. (see for example, B (SG) v L (SJ)], 2010 ONSC 3717, but see also 2010 ONCA 578, where the stay of that decision was upheld by the Ontario Court of Appeal).
[182] One source of authority that the Mother asks me to consider in this case is Article 12 of the United Nations Convention on the Rights of the Child, Can. T.A. 1992 No. 3 (the “Convention”). She portrayed that provision as offering a free-standing authority for the rights of a child in a court proceeding to be “heard” in court proceedings affecting them. Article 12 reads as follows:
Article 12
States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
[183] The Convention is increasingly cited as a source of legal rights for children: see B.J.G. v. D.L.G, 2010 YKSC 44, at paras. 3-5. But as the Supreme Court of Canada has pointed out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at para. 69, since the Convention has not been implemented by Parliament, its provisions do not form a direct part of Canadian law. Rather, it “may help inform the contextual approach to statutory interpretation” of the provisions of Canadian legislation (such as the Divorce Act): para. 70. In saying this, the Court quoted from R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 330:
[T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred.
[Emphasis added by the Supreme Court.]
[184] In A.C. v Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181, the Court was faced with a child protection appeal regarding the right of a 14-year-old child with cancer to refuse a blood transfusion which would violate their religious beliefs. Writing for the majority, Abella J. referred to a child’s right to input in decisions affecting them as a wellspring of the determination of their best interests, with their input growing with their “developing maturity”. As Abella J. wrote at para. 93:
… a robust conception of the "best interests of the child" standard is also consistent with international instruments to which Canada is a signatory. The [Convention] ... describes "the best interests of the child" as a primary consideration in all actions concerning children (Article 3). It then sets out a framework under which the child's own input will inform the content of the "best interests" standard, with the weight accorded to these views increasing in relation to the child's developing maturity.
[185] In S.K. v D.G., 2022 ABQB 425, Loparco J. considered the best interests criteria in the Alberta Family Law Act within the interpretive framework offered by the Convention. She stated at para. 257:
The proper question in my view is: Why should I not follow the child's wishes? If we accept that a child-centered approach in decisions of this nature is appropriate, the burden should not be on the child to prove why their views should be considered. The adults should have to demonstrate why what the child wants is not in their best interests. The international and domestic legal framework discussed above is not an abstract notion of justice for children. One must try to appreciate their lived experience through their lens, take their views seriously, and engage in a subjective consideration of what they consider important to them.
[186] In S.S. v. R.S., 2021 ONSC 2137, Mandhane J. cites the Convention in calling for a “human rights-based approach” to parenting issues, seeing children as distinct from their parents in making decisions that profoundly affect them. Of course, that does not mean that youthful rights holders have a final say in all parenting issues, irrespective of their best interests. But their agency must be respected and considered in the mix of factors that make up the legal definition of best interests.
[187] In Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559, Benotto J.A., writing for the Court of Appeal for Ontario relied in part on Art. 12 of the Convention to explain why children must be involved in making the decisions which affect them. Citing the scholars Rachel Birnbaum and Nicholas Bala,[^13] she wrote at para. 62:
Over the past several years, courts have taken great initiative to seek out and consider the views and preferences of the child. Professors Birnbaum and Bala explain:
The movement towards child inclusion in decision-making in education, medical treatment, and various areas of the law, including separation and divorce, has grown over the last decade. Studies have explored children's rights as citizens, children's perspectives on family relationships and what is a family, and children's attitudes about parental separation and participation in the decision-making process about post-separation parenting. Research clearly suggests that children's inclusion in the post-separation decision-making process is important to the promotion of their well-being. [Footnotes omitted.]
[Emphasis added.]
Judicial Interview with the Children
[188] During the course of this trial, the Mother moved for an order that I conduct a judicial interview with the children. As set out above, Conlan J. had earlier ruled against requesting that the Office of the Children’s Lawyer appoint counsel for the children. For oral reasons given, I declined the request. Among my reasons were:
The children’s views and preferences were already clearly and unambiguously before the court in the form of Dr. Radovanovic’s two assessment reports and the evidence of various persons. She interviewed each child ten times for the Assessment Report and three further times for the Review Assessment. Neither party disputed the veracity of Dr. Radovanovic’s articulation of those views and preferences.
The children have already met a variety of professionals regarding their parenting arrangements, including Ms. Geraldo, Dr. Radovanovic and Dr. Butkowsky. A meeting with me would represent yet another meeting with a stranger/professional to deal with their parenting arrangements.
Dr. Radovanovic warned that a judicial interview in the circumstances of this case raised the risk of further emotional harm to the children if they become further enmeshed into this litigation. She strongly recommended against a judicial interview.
On the other hand, Dr. Radovanovic felt that a judicial meeting with the children after a decision is made would be beneficial to them. It would allow the children to see that their voices had been heard.
It is my intention to meet with the children, coincident with the release of this endorsement.
Analysis of the Issue of Parenting Time
[189] As the Mother’s counsel astutely pointed out, the parties spent most of the eight days of testimony at this trial[^14] dealing with the issue of overnight visits for children who were willing to see their Father but not spend overnights with him. That fact is indictive of the level of conflict in this case. I also point out that most of the cases cited above regarding children’s rights deal with primary parenting rather than what used to be described as “access”.
[190] Here, the parents are diametrically opposed in their positions. The Father wants to require the children to attend overnight parenting time regardless of their wishes, while imposing the obligation on the Mother to ensure their attendance. He is willing to be flexible in accord with the children’s wishes regarding mid-week visits but not alternate weekend and holiday overnight parenting times. He argues that the views and preferences of the children are not independent and have been influenced by cognitive distortions resulting from the Mother’s influence on the children. Therefore, I should discount those views and preferences in the assessment of the children’s best interests.
[191] The Mother insists that the children have the final say regarding all of their parenting time. She cites their ages, maturity and concerns over safety while in the Father’s care. Left unsaid by the Mother is the fact that the children have accepted most of her views of the Father’s behaviour under the rubrics of IPV and coercive control.
[192] The evidence presented at trial in support of the Mother’s narrative of the Father’s abuse and control is centred on the following alleged behaviour:
She refers to the two incidents of alleged physical violence cited above, where the Father allegedly grabbed her neck when they were dating teenagers and his inadvertent, sleeping punch to her pregnant belly.
He berated her and demonstrated his controlling nature when a question arose about $100,000 missing from her medical professional corporation. He does recall concern about the money but denies berating her about it. The issue was soon resolved as it turned out that the funds were not missing. While the Father was perhaps overinvolved in the Mother’s finances here, it was out of concern for those finances. He did not seek to control what she did with her money, only that it not be lost. I do not see that as an instance of financial control.
She points to the over $442,000 in cash that he now holds in a safety deposit box at his office as a “rainy day fund” (which he began accumulating in 2018 and disclosed to her during the course of this litigation). Yet he disclosed it during the litigation and it is included in his NFP statement.
During a reunion party, he became intoxicated and also expressed jealousy about her alleged flirting. The Mother testified that he called her a “disgusting slut”. As set out above the allegation was not put to the Father in cross-examination while the parties’ brother-in-law, who confirms that the Father was drinking that night did not witness him acting in any untoward manner. The note of marriage counsellor Irene Oudek-Suk says that the Mother offered a similar narrative but without the word “slut”.
The Mother says that the Father once suspected that she was having an affair and asked her about it. He also checked the contacts in her phone to confirm his suspicion, an allegation which he does not deny.
She complains of his “creeping” about in the Home while they were in the pressure cooker arrangement of living separate and apart in the same home. I have commented on that allegation, which ignores his virtual ostracization in the Home and his attempts to connect with his reluctant children.
The Mother discovered his purchase of spyware (which he described as anti-spyware, as he says that he suspected the Mother of using spyware). This led the Mother, with the assistance of the children, to engage in a fruitless search for the Father’s spyware in the Home. He says that the kit that he purchased included both spyware and anti-spyware and that he intended it for the latter use. The Mother counters that one of the children once found him Googling the word “spyware”, an allegation which is, of course, hearsay.
[193] Dr. Radovanovic spent hours with all of the parties and children and interviewed all of the relevant collateral witnesses, both lay and professional. She has criticism for both parents. Her criticisms of the Father covered many spheres. They included his decision not to leave the Home after the release of the first Assessment Report, his defensiveness and dismissiveness regarding the children’s and Mother’s concerns about his behaviour in the Home, his response to his brother’s text to the children and his failure to take responsibility for some of his behaviours. Dr. Radovanovic felt that the Father must be more sensitive to the children in his parenting. There were times he grew angry and swore in the presence of the children (the parents disagree about whether he swore at the children). The children did not tolerate that swearing.
[194] But the assessor found that the Mother and children’s emphasis on his allegedly abusive and controlling nature is largely misplaced. There is no question that the Mother has expressed her subjective view of the Father’s abusive and controlling nature to third parties, whose evidence had been placed before the court, whether her sister, her friend or professionals with whom she has interacted. But of course, their repetition of the narrative that she provided to them is simply oath-helping.
[195] While there are concrete examples of behaviour to which the Mother refers, many are simply subjective experiences of his behaviour, such as her references to looks he gives her. She interprets some of those looks as threatening, such as a “death stare” or looking as if he will slash her throat. But as set out above, he has never done anything remotely close to the kind of egregious behaviour she fears. As the Mother admitted, he has never committed intentional violence to her during the marriage nor has he ever threatened any such violence.
[196] Further, as Dr. Radovanovic has pointed put, those professionals with whom the Mother consulted, who never met the Father, did little to challenge her view of him. Dr. Radovanovic felt that the Mother had chosen counsellors who focus on IPV, leading to confirmation bias. Counsellors who saw both parents did not have the same view of the Father.
[197] There is also no doubt, as Dr. Radovanovic noted, that the children, and A. in particular, echo the Mother’s views, at times almost word for word. Those views are also echoed by the Grandmother and the maternal aunt, both of whom enjoy a close relationship with the children.
[198] The Mother’s counsel is critical of Dr. Radovanovic’s failure to find that she is a victim of IPV and coercive control. She questions the assessor’s expertise to deal with that issue. That issue was not raised in any voir dire before Dr. Radovanovic testified. Even more importantly, Dr. Radovanovic reported and relied upon the evidence that was provided to her from numerous sources, both professional and lay. As an experienced and qualified psychologist and parenting assessor, she was able to consider that evidence within the context of the children’s best interests.
[199] Two other factors are compelling in regard to the allegations the Mother makes against the Father. First, the Mother’s previous counsel made allegations against the counsellor Ms. Geraldo that closely echo those her counsel makes against Dr. Radovanovic. Second, as Dr. Radovanovic reports, “[t]he marital professionals who were interviewed and who knew both parents over more extensive period of time indicated that they did not view their relationship as being characterized by IPV or coercive control. Neither professional had concerns about domestic violence or power imbalances between the couple”. Further, the session note of Ms. Oudek-Suk of July 8, 2018 shows that the Mother expressed concern at the counsellor “not seeing through the [Father’s] aggressiveness. That you would just smooth that [a]way”.
[200] The Mother was planning to call an academic expert on IPV, one who never met anyone involved in this trial. But she chose to withdraw that witness before calling her. She never called any expert who actually met the parties who would be able to opine on the presence of IPV or coercive control. Of course, expert evidence is not necessary to find that the Divorce Act’s definition of “family violence” is met in any particular case.
[201] On the other hand, Dr. Fitzgerald’s psychometric testing of the Father contradicts rather than corroborates the Mother’s depiction of him as abusive and controlling.
[202] I also note that the Father has raised incidents where the Mother was verbally abusive to him, calling him names and berating his parenting. For example, during their relationship, she referred to him as “radiator man”, a reference to his time in high school when he spent time with non-studious or accomplished peers. He also spoke of her insulting and swearing at him in their car, on their way home from an Easter visit with their families in 2019. In addition to his testimony, the Father discussed these concerns with Dr. Radovanovic and Ms. Oudek-Suk. He reported feeling like a stranger in his own home after the separation. Of course, he rented another home just months after separation but chose not to move into it.
[203] I also point to the unreliability of many of the Mother’s more lurid assertions of abuse and control against the Father.
[204] With regard to financial abuse, there is no evidence that the Father controlled the Mother’s finances or that he denied her the ability to purchase anything within their very substantial combined means. She drove a Porsche SUV and, according to her financial statement for trial, had $511,626.50 in bank accounts and other investments and just under $1 million in her medical professional corporation. As set out below, she had a number of pieces of fine jewelry. Her brother-in-law, who frequently travelled with the parties and the children (along with the Mother’s sister and their children), deposed that during family trips:
I saw that [the Mother] was always free to spend whatever she wanted; neither she nor the girls could typically pass through a gift shop without purchasing something. If you take one look at their home, it is filled with possessions and souvenirs.… I never witnessed [the Father] tell [the Mother] to return something or say that something could not be purchased.
[205] The Mother’s sister, who was present on all of those trips and family visits says nothing to contradict her husband’s recollections above.
[206] One great task of a trial judge is to determine the factual issues raised at trial based only on the evidence presented at trial. I have summarized that evidence above. That evidence and my findings regarding credibility and reliability lead me to find that whatever the Father’s faults, the Mother has failed to prove that he is a perpetrator of family violence as broadly defined in the Divorce Act.
[207] Rather, neither party was perfect, and each had engaged in regrettable behaviour towards the other. I am not in a position to determine who behaved more badly. But unless that conduct reaches the point of family violence, the question need not be answered. What is important here are the subjective reactions of the parties and children to that behaviour. As set out above, the Mother perceived the Father’s behaviour as far more violent and controlling than the evidence before me would warrant.
[208] On the other hand, while there are reasons to be critical of the Mother’s failure to support the Father’s relationship with the children, that does not mean that they are the victims of parental alienation. In that regard, I agree with Dr. Radovanovic that the issue is more complex and nuanced than that. As the Father admits, his own behaviour played a part in forming the children’s view of him. So too are the other factors cited by the assessor.
[209] Nonetheless, the Mother’s subjective views of the Father have clearly bled out to the children. So too has her diffident approach to encouragement of a full relationship between the children and their Father. Thus, her fears and view of him as an unsafe parent is reflected in the children who identify with her.
[210] From the evidence, I do not see this as a deliberate intent to sabotage the children’s relationship with the Father. As Dr. Radovanovic reported in the Update Report, the Mother has tried to make changes based on the comments in the Assessment Report. She did so even when she did not agree with the assessor’s observations. She has also followed outside recommendations, such as Conlan J.’s recommendations that she participate in driving the children for their summer 2022 Muskoka parenting time with the Father. She is aware that the conflict has been emotionally harmful for the children. But it is difficult for her to get past her own views and fears regarding the Father, whatever basis they have in reality. The children, A. in particular, have followed suit.
[211] Dr. Radovanovic spoke of the Mother’s need to set firmer expectations of the children to extend their time with the Father. That was certainly true in the past, when the children were younger and not subject to any consequences for their refusal to spend more time with the Father. It is difficult to know whether that would have made any difference. That is because, as the Mother pointed out in response to my question during her testimony, she has never before had to impose any consequences on the children for misbehaviour. In many ways, they are model children. They are polite, intelligent, well behaved, and successful in both school and their activities.
[212] All of which leads to the question: should these children, who do not wish overnight visits but are not refusing to see their Father, be forced into those overnight visits? The Father answers in a full-throated affirmative. Dr. Radovanovic generally agrees, although she relies on the term “expectation” rather than “order”. But the court has to choose whether or not it will order the overnight parenting time and whether it will offer the children the option of refusing to attend any of the visits.
[213] Dr. Radovanovic’s rationale is that the children’s refusal to have overnight visits with their Father is a result of “black and white thinking”, particularly on A.’s part. The assessor sees this as a lacuna in A.’s generally high level of maturity, a form of cognitive distortion. She articulates the “minimal expectation” of overnight parenting for the children as being in their best interests.
[214] I agree in part; but only in part. Dr. Radovanovic’s perspective regarding the children’s best interests arises from her approach and understanding as a psychologist. From the evidence at trial, I accept her perspective that it would be in the children’s best efforts to have an improved relationship with their Father. Even the Mother does not deny that anodyne suggestion. I also do not question that it would be a loss to each child if their relationship with their Father were further diminished. But it is at this point that the perspective of the psychologist and the law may diverge.
[215] Dr. Radovanovic’s view of the children’s best interests arises from her approach and understanding as a psychologist. But a psychologist’s view of a child’s best interests and that of the law do not necessarily fully overlap. The best interests factors set out in the Divorce Act, above, place substantial weight on “the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained”. The Baker decision informs the court that it should incorporate the Convention’s values and principles when interpreting the best interests criteria of the Divorce Act.
[216] As set out above, Dr. Radovanovic acknowledged the “legal and mental health opinion” which calls for potentially considerable input by older teenagers into their parenting decisions. But her best interests approach is not one that is rights based. On the other hand though, caselaw has generally spoken of the right of children of a certain age and maturity to participate in parenting decisions. That is a movement which this court must respect and where appropriate, follow. That does not mean that every child gets to choose all of their parenting arrangements. But older, mature children have a right to a substantial say in those arrangements. And the older they are, the more say they have. Once they reach 16, there are few courts in Ontario that will force parenting time on children absent special circumstances.
[217] Regarding A., there is no question that she is an intelligent and mature young woman, regardless of the cognitive distortions she may experience about the Father’s nature or conduct. Her strongly fixed views are influenced but not controlled by her Mother.
[218] I agree that it would be in A.’s best interests, as understood and articulated by Dr. Radovanovic, to have a better relationship with the Father. That would even include overnight visits. But whatever distortions A. experiences about the Father, she retains the capacity to make decisions and have a vote about overnight parenting.
[219] A. will be 17 next month. To force her to engage in overnight visits contrary to her wishes may well affect her growing sense of autonomy and ultimately her happiness and well-being. As Martinson J. wrote in B.J.G. v. D.L.G., above, at para. 24, regarding consulting with children about their parenting arrangements:
Further, longer-term adverse effects of not consulting children and adolescents may include: loss of closeness in parent-child relationships; continuing resentment if living arrangements don't meet their needs in time or structure; less satisfaction with parenting plans, less compliance, more "voting with their feet"; and longing for more or less time with the non-resident parent.
[220] Further, if I were to turn Dr. Radovanovic’s expectations into an order, what would occur if A. refused to comply? The Mother would be required to enforce significant behavioural consequences for the first time in the child’s life. Perhaps that should have occurred earlier. But as the Mother pointed out, it has never been necessary in any other aspect of the children’s lives till now. If the Mother does apply consequences and they do not work, what happens next? Perhaps a contempt motion, which is unlikely to obtain better results. Rather, it will only increase the conflict that has consumed this family for years now. What then? The risk of even further damage to the relationship between A. and the Father would only increase, as would the chance that A. would see this as a play for further control by the Father.
[221] I find that A. is at a sufficient age and level of maturity and that she possesses sufficient rights as a result of those factors that she should not be forced into any parenting time against her will. I add that little good would come of it if I were to order her to engage in that parenting time. Thus, while I set out below terms for both children to spend with the Father, I do so for A. only to set out the parenting time that she may spend with him. I do not require her to engage in any of that parenting time. Conversely, while I require the Mother to encourage A. to attend that time, I do not require her to oblige A. to attend.
[222] Turning to B., the child is nearly two years younger than A. She will turn 15 in about a month. Further, Dr. Radovanovic does not ascribe the same cognitive distortions to B. that she does to A. B. has not rejected the Father in the manner that A. has done. For that reason, B. is more open to spending parenting time with him than A., albeit not overnight time.
[223] At B.’s age and level of maturity, the court has to assume a tricky balance between the child’s autonomy rights and the Divorce Act’s other best interests factors. Here, I find that requiring B. to have parenting time with the Father is in the child’s best interests, as defined by the Divorce Act. This finding highlights both the Court’s approbation of the continuation of that relationship and the child’s own views. In saying this, I rely on B.’s age, maturity, views and preferences, the Father’s “friendly amendment” regarding the children’s choice in mid-week parenting time, and Dr. Radovanovic’s findings (if not her recommendations in full).
[224] But the other side of the scale that I am balancing for B. tells me that requiring overnight parenting time is a bridge too far. This is not a question of whether the child will have a relationship with the Father, or even parenting time with him. It is more a question of the nature of that parenting time. Because B. strongly resists such overnight visits, this is where the child’s rights have greater force and effect. I am willing to respect that request. Thus, in the face of B.’s increasing maturity and rights, I do not find that it is in her best interests to require overnight visits when regular and willing day visits are continuing. I find that it would be an unfair and unhelpful infringement on the child’s agency as a growing young woman.
[225] Thus, the parenting terms that I have set out below for B. represent in great measure the status quo. That regular weekly parenting time goes from after school till 9:30 p.m. and every Sunday from 11 a.m. to 8 p.m. It shall continue for B. In light of the Father’s friendly amendment to Dr. Radovanovic’s recommendations, I give the child the right to choose whether to exercise her mid-week parenting time if she is otherwise engaged in other activities. If both B. and the Father agree, the mid-week parenting date may be changed, upon notice to the Mother.
[226] I also set out below special and holiday parenting terms that reflect terms found in each parties’ draft order, albeit not in the exact form that either set out. In fact, many of the parenting terms set out below reflect terms found in the Mother’s draft order, except for the notion that no parenting time should be binding on B. without her consent.
[227] While I do not order A. to participate in this parenting time, I strongly encourage it. She may participate in any parenting time that I have ordered for B. or any other time that she and the Father agree upon.
Parenting Coordination
[228] The Father proposes that I order the parents to enter into parenting coordination, a process which includes a form of arbitration. In short, I lack the jurisdiction to do so. In Michelon v. Ryder, 2016 ONCJ 327, I reviewed a number of authorities and came to that conclusion, writing at para. 20:
…it is clear that the Ontario statutory framework for the use of arbitration to settle family law disputes requires consent, as expressed in an arbitration agreement, in order to commence the process. That agreement can call for further reference to secondary arbitration to settle disputes that may arise from time to time down the road. However, absent statutory change, the gateway to the arbitration process can only be traversed voluntarily. Court orders, even those on consent, do not contain a shortcut across the arbitration gateway.
[229] Among the authorities that I relied upon was M.(C.A.) v. M.(D.), 2003 18880 (ON CA), 67 O.R. (3d) 181 (CA), where Rosenberg J.A., writing for the Ontario Court of Appeal stated at para. 22 that a court has "no authority" to delegate its power to determine custody or access to a third party. That decision was later affirmed in D.D. v H.D., 2015 ONCA 409, at para. 92.
[230] I add that more recently, in K.M. v. J.R., 2022 ONSC 111, Pazaratz J. considered the same issue and came to the same conclusion. He wrote at paras. 363-364:
However, the court has no authority to delegate decision-making authority over parenting issues to another person or agency. We can recommend the use of a parenting co-ordinator as a less litigious, more therapeutic, more child-focused, more convenient, and more economical alternative. But we can't force parents to do it. M.(C.A.) v. M.(D.), 2003 18880 (ON CA); D.D. v. H.D, [2015] O.J. No. 2959 (ON CA); Michelon v. Ryder, 2016 ONCJ 327 (OCJ); McKenzie v. McKenzie, 2018 ONSC 4651 (SCJ); Lopatowski v. Lopatowski, 2018 ONSC 824 (SCJ).
This limitation is unchanged by recent amendments to the Divorce Act which otherwise authorize the court to make an order directing parties to attend a family dispute resolution process.
[231] Pazaratz J. explained at para. 369 that the amendment at 16.1(6) of the Divorce Act[^15] “does not go so far as to allow the court to include in a final order a permanent requirement forcing parents to resolve future issues through a family dispute resolution process.”
[232] I add that the term, “family dispute resolution process” is defined in s. 1 of the Divorce Act as “a process outside of court that is used by parties to a family dispute to resolve any matters in dispute, including negotiation, mediation and collaborative law”. That definition does not include arbitration or any form of compulsory decision making. It does include a number of voluntary processes.
Family Counselling
[233] The Father asks the court to order that the children be required to participate in family counselling with him. That is one of Dr. Radovanovic’s recommendations. The children were in such counselling with Dr. Butkowsky but chose to terminate it. Because that counselling was closed, the court has no evidence of its progress or the reasons for its termination. The parents continue to engage in their own counselling with Dr. Butkowsky. The Mother says that she remains willing to do so for the next year.
[234] The court has the jurisdiction to order a child to attend reunification counselling, even in the face of the Heath Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, s. 10: A.M. v C.H, 2019 ONCA 764, at para. 71. In doing so, it should consider the child’s age, maturity and the statutory best interests factors. But in determining whether to require that counselling, the court must consider the risks and limits of such an order. As Pardu J.A. wrote for the Court at para. 72 of A.M. v C.H:
There are of course risks in making therapeutic orders. The child may refuse to comply. A health care practitioner may consider that the child is capable and that he or she cannot override the child's refusal. The attempts at therapeutic intervention may fail. Courts cannot fix every problem.
[235] Here, the children did attend counseling with a very well-respected therapist. They chose to both keep their counselling records confidential and ultimately terminated their involvement. For the reasons set out above, primarily due to her age, I will not force A. to engage in further counselling.
[236] That being said, I wish to grant B. and the Father the opportunity to mend the damaged parts of their relationship before it deteriorates any further. It is quite possible that this will not occur in a meaningful way without further counselling. Dr. Radovanovic has recommended the resumption of that counselling, along with counselling between the parents. She sees the two forms of counselling with Dr. Butkowsky as a way to allow this family to work together to repair the broken aspects of the children’s relationship with the Father. While I do not require A. to participate, she may choose to do so, particularly in light of B.’s involvement.
[237] Counselling between B. and the Father is part of the balancing framework that I discuss above. While I am not forcing B. to have overnight visits, I do order reconciliation counselling between B. and the Father for at least a further six months as being in the child’s best interests. After six months, I will review that issue. The counselling shall be with Dr. Butkowsky or if he is unwilling or unable to engage in the counselling, another counselor agreed upon by the parents, or if they are unable to agree, they may return the issue to me.
[238] I also order that the parents remain engaged in their counselling with Dr. Butkowsky. The Mother says that she is willing to agree to do so for one year. I extend that term slightly and require them to engage in counseling with Dr. Butkowsky until B. turns 16.
I Remain Seized
[239] One way in which the court can assist with parental contact problems is to remain seized with a case to ensure that any problems, when they arise, can be dealt with on a timely basis. Thus, I will remain the case managing judge for this case for at least the next six months.
[240] I will review the parenting terms of my order in six months in order to determine whether to expand, contract or otherwise change B.’s parenting time with the Father and consider what further steps, if any, should be taken regarding counselling. In as much as I have not ordered a further assessment (which neither party has requested), upon the review, I intend to engage in a judicial interview with either or both children, subject to their right to decline such an interview.
[241] I will also meet with the children, coincident with the release of this endorsement, to explain my decision and expectations to them.
Issue No. 2: What property and equalization payment orders should the Court make?
[207] Counsel have done well to narrow the parties’ property and equalization disputes, leaving a narrow menu of issues from what could have been a groaning board of unresolved matters. The property and equalization issues remaining to be determined are:
a. Valuation or Division of Household Contents;
b. V-Day value of the Father’s 2015 Audi S4;
c. V-Day valuation of the Mother’s Jewelry;
d. Date of Marriage (“DOM”) value of the Father’s 2001 Volkswagen Jetta;
e. DOM student debt of the Mother;
f. Quantum of the Equalization Payment (“EP”) owing to the Mother; and
g. Prejudgment interest.
[208] The difference between the parties’ best positions regarding the EP that the Father owes to the Mother is $115,905. That is the difference between the Mother’s claim that she is owed $485,899 and the Father’s claim that he only owes her $369,994.
Valuation/Division of Household Contents
[209] There is no dispute between the parties that any discussion of the value of the items in the Home or their division must begin with the principle that the contents of the children’s rooms on V-Day and their possessions are not subject to division or equalization.
[210] The Mother claims that all of the contents of the Home were already divided to the Father’s satisfaction. Recall that she continues to reside in the Home and has possession of all of the items that the Father did not remove. The Mother adds that she was willing to agree to a list of further items that the Father had made except for a water rower. She complains that the Father reversed course to ask that a notional figure of $50,000 to be attributed to the Mother for the furniture, a notion she rejects. She argues that absent an evaluation, I should attribute no value to those items because the onus to prove a deduction rests on the party seeking the deduction: Abdilla v Abdilla, 2004 35086 (ON SC), at para. 24.
[211] The Father says that he took virtually no items from the Home but his personal possessions, leaving all the rest. He has presented the court with an extensive list of the items that he says remain in the Home. The Mother does not deny the accuracy of that list.
[212] I have no evidence of either the value of the items in the Home or the Father’s alleged abandonment of any claim to them. There is no presumption that the Father abandoned his interest in those items, which should be treated as joint. Nor is there a presumption that they default to one party over the other.
[213] The parties are either unable or unwilling to divide or value the Home’s contents. At trial, absent compelling evidence, the court cannot arbitrarily assign a substantial value to items that the parties chose not to value. Rather, in the absence of agreement as to value, it is a matter of dividing joint property.
[214] Thus, I acquiesce to each party’s alternate position, and order that the household contents of the Home as of V-Day be divided in specie.
[215] Both parties understand that, in the words of the Mother’s written submission, “such a division will undoubtedly impact the children”. That result is both parties’ choice. Each can take steps to reasonably divide the Home’s contents in a fair manner. I would expect the Mother to explain to the children the necessity of such a step and the propriety of the Father forbearing from claiming items that will directly affect them. Further, she should explain that it is my decision to equally divide the contents of the Home.
[216] If the parties cannot agree on a manner of dividing the Home’s V-Day contents, their counsel may arrange a conference call with me to discuss the next steps in that process.
V-Day Value of the Father’s 2015 Audi S4
[217] On V-Day the Father owned a 2015 Audi S4. He claims that it was worth $20,000, using a Black Book value and claiming that it had high mileage. The Mother relies on a Red Book value of $27,798. She claims that the Father offered no evidence of how he arrived at his figure. The same is true for her.
[218] Thus, I am left with little real evidence of the value of the vehicle on V-Day. An Audi S4 is an expensive, high-performance automobile. But at the time of separation, it was likely about five years old. The Mother does not discount the Father’s assertion that it had high mileage on V-Day. Without more evidence, I am left to make the roughest estimate of the value of the S4. I find that the Father’s figure is too low, and the Mother’s is too high. The mid-point is $23,899. Because of the mileage of the vehicle, I reduce that figure to $22,000.
V-Day Valuation of the Mother’s Jewelry
[219] The Father testified that the Mother owns some valuable jewelry, which he purchased for her before and during the marriage. He says that he spent $28,000 on her engagement and wedding rings (collectively the “wedding rings”), more money to “upgrade” them, as well as a further $50,000 in total for a Tiffany ring and two sets of diamond earrings. One set of earrings was an upgrade from a set that he had purchased for the Mother prior to marriage. While he fails to produce any receipts for those purchases, he does offer a recent appraisal of the wedding rings.
[220] The Mother does not deny her ownership of the jewelry to which the Father refers. Yet she failed to mention any of that jewelry in any of the financial statements she swore prior to trial. She attempts to partially explain this omission by claiming that the wedding rings have actually declined in value due to wear and tear. She also complains that the Father failed to value his own jewelry or consider the DOM value of her rings.
[221] While the Father denies ownership of any jewelry of value, the Mother testified to his ownership of watches and cufflinks. However, she failed to offer any particulars of the Father’s alleged jewelry in her evidence. I add that the Father was never cross-examined on the issue. In the absence of any particulars, let alone evidence of its value, I can give no credit to the Mother’s argument regarding the Father’s alleged failure to value his own jewelry. I can only conclude that they had minimal value on V-Day.
[222] The Father testified that the Mother’s engagement ring was upgraded during the marriage to add diamonds and that her wedding band was upgraded. He further stated that he gave the Mother diamond earrings prior to marriage that were traded in for a better pair. He testified that he gave her a second set of earrings as well as a $20,000 Tiffany “celebration” ring.
[223] The Father claims that he spent $28,000 on the original engagement ring and $20,000 towards the Tiffany ring. In addition, he alleges that he upgraded the Mother’s engagement ring. But he admits that some of the stones on the engagement ring had been damaged. He produced October 3, 2022 appraisals of each of the wedding rings that offers a total $21,700 “Liquidation Value” for the two rings. The appraiser was never called to testify. The appraisal of the engagement rings notes that the smaller stones on the engagement ring have “noticeable chips”. The Father offers no evidence but his word for the cost of the other jewelry that he says that he purchased for the Mother.
[224] While the Mother does not deny her ownership of the jewelry to which the Father referred, she offered no evidence regarding its value. Her only testimony in chief regarding her jewelry was simply her lay view that the value of her engagement and weddings ring decreased during the marriage. Her sworn financial statements ignored the value of her jewelry altogether.
[225] I cannot accept the Mother’s position regarding her jewelry. The jewelry is in her possession. The onus rests on her to list and prove the value of her jewelry on both the DOM and V-Day. Her approach is contrary to her disclosure obligations and duty to prove the value of her assets unless they can be agreed upon.
[226] Thus, I am unwilling to accept the Mother’s position that I should consider the DOM and V-Day values of her jewelry as a wash and ignore the rest. Even if the two sets of values of her wedding and engagement rings can be considered to be roughly equal, I cannot ignore the other jewelry cited by the Father and not denied by the Mother. Yet I also cannot ignore the fact that I have no appraisal or receipt for either the Tiffany ring or the diamond earrings. Lacking better evidence, I consider the V-Day and DOM values of the weddings rings to be roughly equal and thus a wash. The Mother also had a set of diamond earrings on the DOM, although I have no evidence as to that value. To the extent that the Mother would seek to have a deduction for that value she was required to provide some evidence.
[227] In light of all of the above, I attribute a net figure of $20,000 to all of the Mother’s jewelry on V-Day. She does not claim any value on the DOM and I let that stand. Thus, I find that the value of her jewelry increased by $20,000 during the marriage. This is an admittedly imperfect result, but the best one that the court can offer based on the limited evidence provided.
DOM Value of the Father’s 2001 Volkswagen Jetta
[228] On the DOM, the Father owned a 2001 Volkswagen Jetta. He says that its Red Book retail value was $13,625. The mother uses the same Red Book’s wholesale value of $11,125. The Jetta was about five years old on the DOM. Considering both parties’ career trajectory at the time of their marriage, there would have been little time available to either of them to attempt to sell this car on a retail basis. If it were to be marketed on the DOM, it would likely be sold as a discounted trade-in to a dealer. Thus, there is no reason to use the retail value. The proper value is the wholesale value of $11,125, as cited by the Mother.
DOM Student Debt of the Mother
[229] The Mother testified that she held no student debts on the DOM. She says that she paid them all off by then. The Father disagrees. He says that at the time, she held $125,000 in student loan debts, owed to the Bank of Montreal under a line of credit (the “LOC”). He adds that he paid off the LOC from a bonus in 2006 or 2007.
[230] Unsurprisingly, there is no direct evidence of the state of the LOC on the DOM. The parties married almost seventeen years before this trial began. Canadian banks are not known to keep customer records for more than six years. The Mother attempted to obtain the LOC records for the DOM, without success. She also provided a direction to the Father to obtain the same information. He was no more successful than her.
[231] Nonetheless, the Mother was able to obtain a May 23, 2007 LOC statement, which also showed the balance as of April 23, 2007. That was about 22 months after the parties married. It showed a balance owing of only $704. By 2015, that figure had expanded to $94,000, as the parties used the LOC for family purposes.
[232] The Father has no direct evidence of the alleged DOM LOC debt but claims to be certain of its existence. He points to photos that he produced of two envelopes, one for each set of the parties’ parents. Each envelope contained a cheque which was given to one set of the parties’ parents over Christmas 2007 to repay their financial assistance to parties’ education. The Father is unable to produce any photos or records of the actual cheques.
[233] The Mother responds that her parents originally took out the LOC for her education but later transferred it to her. They helped her by paying $20,000 towards the LOC. That testimony was confirmed by the Grandmother. The Mother says that she paid off the rest by working extra hours after graduation. The unidentified envelopes that the Father photographed are likely the repayment to each set of parents of the money that they advanced to the parties to assist with their education. That moral debt is separate from the LOC.
[234] Lacking any direct evidence of his alleged payment of the Mother’s student loan LOC, the Father points instead to the Mother’s pleading amendment regarding that loan, cited above. He asserts that the court must draw a negative inference against the Mother for her “patently dishonest” amendment. As stated above, I have rejected that argument, finding that I would instead determine each issue on the evidence presented on the issue.
[235] The onus on this issue falls upon the Father to prove the debt that he ascribes to the Mother. He fails to do so. While not definitive, the Mother has produced the best evidence available on the issue, in the form of the April 23, 2007 LOC statement. That was well before Christmas 2007, when the Father says that he paid off her LOC.
[236] I do not doubt that the Father sincerely believes that he paid off the Mother’s student loan at the time that the parties presented the Christmas 2007 envelopes to their parents. But from the evidence, the LOC and the amounts that the parties owed to their parents for their educational assistance were separate debts. It is likely that the Father conflated them. I add that the Father was still a junior banker in 2007. There is no evidence that he had sufficient funds at the time pay off a $125,000 debt, all at once. He points to no tax returns showing a six-figure 2007 bonus or any other indication that he had sufficient funds available to him at the time he says that he paid off the LOC.
[237] In considering the above, I find, on a balance of probabilities, that the Mother’s student loan debts were paid off by the DOM.
Conclusion re Equalization
[238] Based on the valuation figures set out above, counsel should be able to prepare a joint NFP statement. If the parties are able to make the equalization payment determination themselves, they shall sign minutes of settlement, whose terms will be included in a subsequent endorsement. The equalization payment they agree upon shall be paid out of the Father’s share of the proceeds of sale of the Home. If they are unable to agree, counsel will arrange a further Zoom call with me to discuss next steps. Until that time, I remain seized of the issue.
Issue No. 3: What child support should the court order the Father to pay to the Mother?
[239] Little time was spent at trial dealing with child support issues as the parties have agreed on most of them. They have agreed that the Father shall pay ongoing table child support of $24,661 per month to the Mother based on his 2021 income of $2,032,000.
[240] The parties have also agreed that the Father pay a total of $79,560 on or before October 25, 2022, on account of retroactive child support from the date of October 1, 2021, through to October 31, 2022. If that amount has been paid, all other claims for retroactive child support from the date of separation are dismissed.
[241] While the Father agrees that the $2,032,000 figure is appropriate for child support purposes there is no agreement regarding the Mothers income for support purposes (whether s. 7 special and extraordinary expenses or spousal support). For reasons set out below in my analysis of spousal support, I impute an income of $550,000 per year to the Mother for support purposes. Thus, s. 7 expenses will be paid proportional to those incomes.
[242] It appeared that the parties had agreed on the amount of ongoing s. 7 expenses that must be paid proportionate to income and the proper items to be included in the s. 7 calculation. The terms in the parties’ draft orders were similar albeit not identical. They also referred to the same annual s. 7 figure in their written submissions. But when I requested that they provide me with a draft order setting out their agreed upon terms for inclusion in this endorsement, they were unable to agree.
[243] Thus, I adjourn the issue of ongoing s. 7 expenses, and will hear from counsel at the time of release of this endorsement as to next steps in resolving that issue.
Issue No. 4: What amount of spousal support, if any, should the court order the Father to pay to the Mother?
[244] The parties strongly disagree whether the Father has a spousal support obligation to the Mother and if so, how much. On the facts of this case, that issue is a multifaceted one. In order to determine the Father’s spousal support obligation, if any to the Mother, I must consider the following sub-issues:
Is the Mother entitled to spousal support and if so, on what basis?
What is the Father’s income for spousal support purposes?
What is the Mother’s income for spousal support purposes?
What amount of spousal support, if any, should the court order the Father to pay to the Mother?
What should be the duration of the payments?
Is the Mother entitled to spousal support and if so, on what basis?
Jurisdiction and Basis for Spousal Support
[245] The court’s jurisdiction to order the payment of spousal support is found in s. 15.2(1) of the Divorce Act. That provision allows the court to order a spouse to pay periodic and/or lump sum amounts, as the court thinks reasonable for the support of the other spouse.
[246] Spousal support may be made on a final or interim basis: s. 15.2 (1) and (2). Under s. 15.2(3), the spousal support order may be made for definite or indefinite periods or until a specified event occurs. The court may also impose “terms, conditions or restrictions in connection with the order as it thinks fit and just”.
[247] Section 15.2(4) requires the court to “take into consideration the condition, means, needs and other circumstances of each spouse.” The factors that the court must consider include:
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
[248] Under s. 15.2(4), an interim or final spousal support order should meet the following objectives:
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[249] As the Supreme Court of Canada stated in the seminal case of Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813, all four of the potentially overlapping objectives must be taken into account. None, including self-sufficiency, is paramount or should be given priority to the others. This approach recognizes the great diversity of marriages. It allows the court to take a case-by-case approach to the determination of spousal support.
[250] The goal of the application of these four objectives is to achieve an equitable sharing of the economic consequences of marriage or marriage breakdown. There is no guarantee that the spouses will share an equal standard of living after the marriage’s dissolution. However, the longer the relationship and the closer the economic union, the greater will be a spouse’s presumptive claim to equal standards of living upon dissolution.
[251] As L’Heureux-Dube J. wrote for the majority at pages 848-849 of Moge:
[T]he purpose of spousal support is to relieve economic hardship that results from “marriage or its breakdown”. Whatever the respective advantages to the parties of a marriage in other areas, the focus of the inquiry when assessing spousal support after the marriage has ended must be the effect of the marriage in either impairing or improving each party’s economic prospects.
This approach is consistent with both modern and traditional conceptions of marriage in as much as marriage is, among other things, an economic unit which generates financial benefits… The [Divorce] Act reflects the fact that in today’s marital relationships, partners should expect and are entitled to share those financial benefits.
[252] In Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420, the Supreme Court of Canada recognized that there are three conceptual grounds for entitlement to spousal support: (1) compensatory; (2) non-compensatory; and (3) contractual.
[253] Compensatory support is premised on the notion that some or all of a spouse’s entitlement to support may arise out of his or her contributions to the other spouse during their relationship. That contribution may arise out of the roles that the parties assumed. Those roles may:
confer an advantage on one party (say career enhancement; see for example, Caratun v. Caratun (1992), 1992 7715 (ON CA), 10 O.R. (3d) 385 (C.A.)); and
confer a disadvantage to the other (say a spouse giving up, delaying or impairing a career to assume a caregiving role during the relationship; see for example, Spurgeon v. Spurgeon (2001), [2001 38738