Court File and Parties

COURT FILE NO.: FS-19-7960-0000 DATE: 2023-06-05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Rosemond Ginieczki Wilson, Applicant AND: Andrew Platt Wilson, Respondent

BEFORE: W.D. Black J.

COUNSEL: Nancy Deskin, for the Applicant Andrew Platt Wilson, Representing himself

HEARD: April 17, 2023

ENDORSEMENT

Overview

[1] The trial in this matter proceeded before me during the weeks of April 17 and 24, 2023.

[2] The issues that remain unresolved between the parties include decision-making, child and spousal support (including retroactive support), equalization of property, and various related items.

[3] In each of these categories, the parties’ positions are diametrically opposed.

[4] The applicant Ms. Wilson seeks:

(a) Primary residence and final decision-making;

(b) Ongoing and retroactive child and spousal support and contribution to section 7 expenses;

(c) A substantial equalization payment which, as will be seen below, is to come from the remaining proceeds of sale of the matrimonial home;

(d) Various other relief and costs.

[5] The respondent Mr. Wilson:

(a) Does not specify in his closing submissions his position on residence and decision‑making, but it is apparent from the tenor of those submissions that he does not agree that Ms. Wilson should have final decision-making authority;

(b) Believes there should be no ongoing or retroactive support payments of any kind, and, looking forward, takes the position that both parties should be working, and providing for the children from their respective putative incomes;

(c) Maintains that the remaining proceeds from the sale of the matrimonial home should be earmarked first to repay his tax arrears; and

(d) Argues that there should be an equal and unfettered shared parenting arrangement from this point on, and that the model should ideally be changed to allow the children to be with each parent for longer stretches (perhaps a 5-5-2-2 arrangement, although not articulated as such), with the 2-2-3 arrangement as his second choice; and

(e) Seeks a myriad of other relief, including payment of his costs.

Background Facts – Ms. Wilson’s Version

A. Initial Meeting and Interactions between the Parties

[6] The parties met when they were both living in New York City in 2005 or 2006. They were both dog owners at the time and met in a dog park in the West Village area.

[7] Ms. Wilson testified that after initially meeting, the parties started “hanging out” regularly.

[8] They became engaged and started living together in January of 2007, and were married in October of 2007.

B. Parties’ Personal Histories

[9] Both parties are accomplished and well-educated.

[10] Ms. Wilson was born (in November of 1975) and raised in the United States. She attended Boston University for her undergraduate degree, and went on to obtain a Masters degree from Columbia University. When she first met Mr. Wilson, she was working as a guidance counsellor at a school in Paterson, New Jersey.

[11] Mr. Wilson was born in Ottawa, Ontario in January of 1974. One of his parents was a diplomat, and while growing up he attended a boarding school in St. Catherine’s, Ontario.

[12] He obtained two degrees, in engineering and math, at Queen’s University and initially moved to Switzerland after he graduated, where he worked for about three years in what sounds like data analytics and programming. He then moved to New York City, where he worked on Wall Street for J.P. Morgan (the role he occupied when the couple met, and throughout their time in New York). Ms. Wilson’s understanding of his specific role was limited; she described him as a “Credit Derivatives Trader”.

C. Ms. Wilson’s Understanding of Mr. Wilson’s Job

[13] Ms. Wilson testified that Mr. Wilson told her that he was “indispensable” in his role at J.P. Morgan, and that he was one of 10 people in the world who had the ability to do the job that he did. Mr. Wilson’s testimony agreed that his job was specific to dealing with and selling off (over several years) a portfolio of distressed real estate assets from the 2008 financial crisis and that therefore his skillset was not widely marketable. In other words, he agreed that very few people did the job that he did, but did not agree that his skillset was unique or in demand beyond the limited role he was performing with J.P. Morgan.

[14] Ms. Wilson advised that she did not know Mr. Wilson’s income at that time. He controlled all financial matters, and did not tend to share details of finances with Ms. Wilson.

D. The Parties’ Living Arrangements in New York and the Births of their Sons

[15] However, Ms. Wilson confirmed that they lived very comfortably together, initially at an apartment in the West Village and then, after the birth of their eldest son, August in March of 2009, at an apartment in Brooklyn (to which they moved in 2010). Mr. Wilson’s evidence was that the apartment in the West Village was a 700 square foot one-bedroom apartment, and was “intimate” as opposed to opulent.

[16] They had a second son, Winslow, born in December of 2011, and a third son, Declan, born in May of 2013.

E. Mr. Wilson’s Demeanor and Demands

[17] Ms. Wilson testified that Mr. Wilson worked reasonably long hours while they were living in New York, and that she did a much greater share of the care and parenting of the children than Mr. Wilson did.

[18] She said that Mr. Wilson was very “serious” in his affect, and “stressed and disgruntled” by his work on Wall Street. She related that she and the boys, as they grew older, learned not to approach Mr. Wilson while he was occupied with work-related matters, which he appeared to be much of the time even while at home, and that effectively they did their best to work around him.

[19] Ms. Wilson described the family relationship as reminiscent of the (stereotypical) 1950s. Mr. Wilson expected Ms. Wilson to have his meals ready, and to attend to all household chores, and made clear his unhappiness with her over real or imagined transgressions.

[20] She came to feel psychologically abused and oppressed, and lived in fear of Mr. Wilson’s unpredictable outbursts aimed at her and the children.

[21] Among other complaints that he harboured, Mr. Wilson felt that Ms. Wilson was “too close” to her family, including in particular her parents, and made it difficult for Ms. Wilson and the boys to spend much time with Ms. Wilson’s parents and siblings (albeit that her parents lived reasonably close to them when they lived in New York).

F. The Move to Toronto

[22] In 2014, Mr. Wilson left his position at J.P. Morgan, and in 2015, the family moved from New York to Toronto. The couple considered various potential destinations. Ms. Wilson, in particular, advocated for Toronto as the best location for them.

[23] Ms. Wilson testified that she was optimistic about the move. She hoped that, with the pressure of his Wall Street job alleviated, Mr. Wilson would in turn become more relaxed and approachable, and would be able to spend more time with the family.

[24] She said that when they first moved to Toronto things in fact seemed better. They found a rental home at 101 Garfield Avenue, in the Moore Park area of Toronto, and enrolled the children in local public schools.

[25] Her expectation, based on what Mr. Wilson had told her, was that Mr. Wilson would look for work in Toronto commensurate with his experience in New York, and that in fact even before the move Mr. Wilson had told her of at least one interview he had attended in Toronto to that end.

[26] However, as time passed, Mr. Wilson made little or no effort to find a job. He told Ms. Wilson to tell their friends and acquaintances, if anyone asked, that Mr. Wilson was “retired from Wall Street”. Ms. Wilson testified that he would spend hours on the computer behind closed doors, and that she understood that he was “day-trading” but that she did not know, and was afraid to ask, how exactly he was spending his time, and whether or not he was earning any income.

[27] For her part, Ms. Wilson was determined to enjoy the new community to which they had moved, and began participating in the school community in particular, landing a volunteer position on what she described as the “school board” for a local school (which appears to have been some type of parent-teacher organization).

G. Return to Problematic Patterns

[28] Ms. Wilson testified that as they settled into the new community, they also unfortunately settled into the pre-existing patterns that had characterized their life in New York.

[29] That is, Mr. Wilson continued to be exacting and demanding about the couple playing “traditional” roles, and was tyrannical about Ms. Wilson’s activities outside the home, complaining about her attendance at school-related events, and continuing to impose limits on and express complaints about any proposed time with Ms. Wilson’s family.

[30] Mr. Wilson went so far as to allege that Ms. Wilson’s parents had in the past molested her and that Ms. Wilson’s father (Dr. Ginieczki) in particular would be prone to molest their sons. Dr. Ginieczki is an (I believe retired) urologist with over 30 years of experience in that field. The “molestation” allegation appears to stem from an incident in which one of the boys injured his penis, and, because Dr. Ginieczki was present, he examined the boy to ensure that there was no serious injury. On another occasion, Dr. Ginieczki apparently examined Ms. Wilson’s surgical scar from a C-section. Mr. Wilson gave evidence that he viewed this as inappropriate.

[31] Ms. Wilson was clear in her testimony that there was no truth to any of these “molestation” allegations, but says that at the time, she was so much under Mr. Wilson’s control that she gave credence to his (in retrospect outlandish) claims.

H. The Purchase of 105 Garfield Avenue

[32] Early in their time in Toronto, the parties purchased a home next to their rental home on Garfield Avenue, acquiring 105 Garfield in August of 2016. Ms. Wilson testified that this was still early enough in their tenure in Toronto that she was still relatively optimistic about their future at that point.

[33] In hindsight, however, Ms. Wilson now believes that certain events at or around the time of the closing of their purchase of 105 Garfield portended the difficulties to come.

[34] Among other things, at the time of the closing of the purchase, Mr. Wilson insisted that title to the home be taken in his name alone, because Ms. Wilson “had such bad credit”.

[35] In fact, this was simply inaccurate.

[36] Ms. Wilson had no significant debts, let alone any history of defaulting on any payments she owed. When she thinks about it now, she is confident that her credit worthiness was in fact pristine, and that there was no reason for her not to be on title. She says, however, that given the power imbalance dynamic of their relationship at the time, she would never have questioned Mr. Wilson’s dictates, and that she simply accepted what he said and went along with it.

I. Troubling Behaviour of Mr. Wilson

[37] Ms. Wilson described in her evidence a series of troubling events in the period from 2016 up to the time that she left Mr. Wilson in January of 2019. I do not propose to review each of them individually, but suffice to say that if the court accepts Ms. Wilson’s evidence about these events, they bespeak a concerning pattern of Mr. Wilson exerting irrational, but almost absolute control over Ms. Wilson and the children, and inflicting emotional and psychological abuse.

[38] On at least one occasion, the abuse escalated from emotional to physical. Ms. Wilson described an event while they were living in Toronto in which Mr. Wilson became enraged, and dragged her up the stairs at their home at 105 Garfield, causing her arm to bump against the stair railing all the way up the stairs, and then throwing her on the bed. When Ms. Wilson came back downstairs to confront Mr. Wilson about his assaultive behaviour, Mr. Wilson repeated the physical abuse, dragging her back up the stairs once again, and again throwing her on the bed.

[39] As part of his assertion of control, Mr. Wilson also took various steps to shake and undermine Ms. Wilson’s confidence.

[40] For example, he regularly accused her of being mentally ill, and in particular alleged that she had extreme ADHD, to the point where she could not be trusted to keep track of their children, and was an unreliable parent. This theme is evident in certain texts and emails referenced below, and it seeped into Mr. Wilson’s evidence at trial.

[41] Again, Ms. Wilson explained that this was not true. At Mr. Wilson’s insistence she did get tested for ADHD, and was found to have a very mild form, but she maintained, and the evidence supports, that she was in fact a very capable mother, devoted, caring and compassionate, and that she managed, to a great extent, to protect their sons from the worst of Mr. Wilson’s authoritarian behaviour.

[42] On that note, Ms. Wilson testified that Mr. Wilson would regularly become enraged about her conduct, or that of the boys, and would sometimes leave the house in a rage, disappearing for extended and unexplained periods of time, and often returning in a state that made it clear he had been drinking.

[43] He also continuously discouraged Ms. Wilson from contact with her family or friends, and lashed out at her irrationally when she sought to arrange such contact.

J. Ms. Wilson’s Decision to Leave

[44] Finally, as a result of a series of events during 2018, and in part on the advice of a therapist whom she had started to see to deal with the emotional fallout from her marriage, Ms. Wilson made the decision that she could not continue to live in the way that they had been living.

[45] Owing to her fear of Mr. Wilson and his expected reaction to a separation, she took surreptitious steps, with the help of her mother, to locate a condominium where she and the boys could live. She began moving personal belongings, a little at a time to avoid suspicion, to the new residence.

[46] On January 10, 2019, she took the boys to that condominium, and, once safely ensconced, advised Mr. Wilson by text that she had left him. This move was simultaneous with a letter being delivered to Mr. Wilson by a lawyer whom Ms. Wilson had retained to represent her in this application (not the same lawyer representing Ms. Wilson at trial).

Neither Party has Worked since Moving to Toronto

[47] It is important to note, given the matters at issue between the parties, that at no point from the time they moved to Toronto in 2015, up to the time of separation and indeed up to the time of trial, did either of them obtain remunerative employment. This is despite the fact that at the time they moved to Toronto they were both approximately 40 years old, well-educated and accomplished.

[48] In that regard, I note that in 2020, Ms. Wilson returned to school and is currently enrolled in a PhD program in Social Justice at the University of Toronto to upgrade her qualifications as a guidance counsellor. She hopes to return to work in that field after receiving her PhD, which she expects will be within the next year or so.

Mr. Wilson’s Version of Background Facts and Events

[49] Mr. Wilson’s version of the events described above is quite different than Ms. Wilson’s version.

A. Mr. Wilson’s Work in New York

[50] First, and in a fundamental way, he disputes Ms. Wilson’s characterization of his employment in New York.

[51] As noted above, he worked for a department within J.P. Morgan’s New York office that was tasked with organizing and selling off assets that the firm had assembled (in conjunction with a government program) in the wake of the financial crisis in the United States (and to a lesser extent elsewhere). The assets were what Mr. Wilson described as “distressed real estate” and the group within which Mr. Wilson worked was solely dedicated to that task.

[52] He said that his department consisted of 12 or so people, that they were not a powerful group within the firm, and that their utility to the firm would be concluded once they had finished the task of selling off the portfolio (which was, and was expected to be, at a loss for the firm).

[53] Mr. Wilson testified that, contrary to Ms. Wilson’s apparent understanding, his salary was relatively modest by Wall Street standards. Although I asked for details of Mr. Wilson’s salary while at J.P. Morgan, no such evidence was provided.

B. The Termination Package

[54] As the portfolio diminished over time, Mr. Wilson explained that members of the team on which he worked were offered packages based on projected bonuses they would otherwise have received if they had stayed on with J.P. Morgan in the ordinary course.

[55] Mr. Wilson testified that the face value of his package, at the time his employment came to an end, was approximately $500,000.00 USD.

[56] However, he said that as the package was paid out in tranches over time, its value appreciated, such that the amount ultimately paid out to him on an after-tax basis was in the order of $1 million (USD). It was that package that exclusively funded the family’s activities from 2014 – when Mr. Wilson left his position at J.P. Morgan – to the present. These savings paid the family’s day to day expenses, and largely funded their acquisition of the property at 105 Garfield. Mr. Wilson’s 2014 tax returns (both Canadian and American) show his income for that year being $1.8 million (USD). He testified that this increase had to do with the timing of payment of the package, which was characterized as income for tax purposes, and that his pre-existing annual income had been considerably less than that amount.

[57] In Mr. Wilson’s Notices of Assessment from the Canada Revenue Agency (CRA) for the years of 2016-2018, his annual incomes are shown, respectively, as $338,483, $229,020 and $344,831. It is difficult to make sense of these numbers, which would seem on their face to eat up a substantial majority of the termination package. However, inasmuch as there is no evidence to suggest that Mr. Wilson earned any employment or other new income after the family’s move to Canada, I am left to assume that the assessed income was comprised of interest on the investment of Mr. Wilson’s retirement package and/or liquidation of portions of that package. Again, those details are absent from the evidence.

[58] What is evident is that the nest egg comprised by Mr. Wilson’s package from J.P. Morgan was not unlimited and, in the absence of any additional income, was steadily eroded over the years between 2015 and trial.

C. Mr. Wilson’s Tax Arrears

[59] In addition, it appears that, he says unbeknownst to him, Mr. Wilson had accumulated tax arrears, both in the United States and in Canada. By the time of trial, and subject to certain accusations levied by the parties against one another, it appears that, apart from one asset, the parties were and are more or less destitute, and in fact, in considerable debt. The one asset, as discussed below in more detail, was the proceeds of sale, in late 2020, of the matrimonial home at 105 Garfield, into the acquisition of which it appears the largest portion of the J.P. Morgan package had been invested. The net proceeds of sale (from a sale price of $3.5 million) have been held in trust, and certain distributions have been ordered on consent and paid to the parties over the two and a half or so years since then. The remaining net proceeds are the only significant remaining asset available to fund payments flowing from this decision, and the allocation of those net proceeds is hotly contested.

[60] Both parties maintain that, other than those distributions, they have been living off the largesse of their respective parents, and that these familial debts have continued to accumulate on both sides.

D. Mr. Wilson’s Account of the End of their Time in New York and the Move to Toronto

[61] Mr. Wilson’s account of the family’s plan upon moving to Toronto was also fundamentally different than Ms. Wilson’s version.

[62] He agrees with Ms. Wilson’s evidence that he had become unhappy in his role at J.P. Morgan by the time he left that job, and maintains that he had no desire to return to any similar employment.

[63] He testified that, during the last few years of their time in New York, Ms. Wilson had struggled to look after their children and household, and that their youngest child Declan, in particular, was a challenging child to parent. He also alleges that, given her “mental illness” and associated shortcomings, Ms. Wilson was incapable of handling even modest demands, let alone those posed by Declan’s heightened needs.

[64] As such, Mr. Wilson testified, he arranged for various “staff” to assist Ms. Wilson in managing those demands, including hiring a nanny who effectively became a full-time nanny for Declan during the day, and a night nurse to look after and “soothe” Declan during the night.

[65] Mr. Wilson also hired a dog-walker to walk their dogs.

E. Financial Considerations and Plans for the Move

[66] Mr. Wilson testified that these various expenses, particularly at New York prices, were financially unsustainable beyond the short term.

[67] As a result of this combination of circumstances, Mr. Wilson said that the plan for when the family moved to Toronto, contrary to Ms. Wilson’s evidence, was that he would become a stay‑at‑home father and take over the brunt of household and childcare responsibilities, and that Ms. Wilson would return to work. I note in passing that Mr. Wilson’s evidence was that Toronto was only one of the candidate destinations when the family left New York, and that he would have favoured Philadelphia, which he viewed as more affordable than Toronto, but that he acceded to Ms. Wilson’s wishes for the relocation.

[68] Mr. Wilson also said that he made it clear to Ms. Wilson that, while the package he had received from J.P. Morgan would provide sufficient funds for them to live an ongoing modest lifestyle, it would not support anything more than a simple and basic existence.

F. Ms. Wilson’s Alleged Spending and Mr. Wilson’s Office

[69] Mr. Wilson’s version of events was that not only did Ms. Wilson not obtain or even look for employment, but that she insisted on spending lavishly and beyond the family’s means, and that this conduct was an ongoing and growing source of friction. He gave various examples of Ms. Wilson allegedly spending excessively despite his remonstrations to the contrary.

[70] While he maintained at trial that he was, at the time after the family moved to Toronto, the primary caregiver for the boys, he also gave evidence that during that timeframe he began renting office space on Bloor Street in Toronto. He testified that he went to that office most weekdays for half a day or so.

[71] His intention in doing so, he said, was to network with other business-people, in particular people involved in start-ups in the Fintech space, and that his goal was to join boards of directors for such companies, to obtain shares in their ventures, to provide consulting services, and to be paid for his role(s). He testified that, to this end, he was involved in meetings “a few times a week”, and that on Thursdays he would meet friends who were in the construction business, for drinks.

[72] Mr. Wilson readily admitted that these activities did not yield any positions or income for him. He said that he was offered certain shares at one point, but that they had nil value, and would have created a tax liability without corresponding (or any) income. I must say here that these activities described by Mr. Wilson had the ring of “playing office” and that there was no evidence before me of any assiduous effort on his part to earn or generate income.

[73] He denied emphatically that he ever “day traded”.

[74] It was also part of Mr. Wilson’s financial plan, he said, to renovate and improve 105 Garfield, which he described as a “fixer-upper”, and potentially to sell it for a profit.

[75] In the meantime, Mr. Wilson insisted, it should have been possible for the family to live a modest lifestyle using the proceeds of his J.P. Morgan package, if not for Ms. Wilson’s lavish spending.

G. Increased Tensions Leading to Ms. Wilson’s Departure

[76] It appears to me that as this tension escalated, Mr. Wilson became increasingly angry and increasingly insistent on certain conduct by Ms. Wilson and the three boys, which in turn exacerbated a family dynamic that was already problematic. Ultimately, matters reached the point where Ms. Wilson concluded that her life was intolerable and she had to leave. After making the plans and arrangements described above, she made the move on January 10, 2019.

Examples of Continued Problematic Conduct by Mr. Wilson

[77] It is also apparent that Ms. Wilson’s departure did not help Mr. Wilson’s mindset. I find that his conduct following the separation deteriorated and was increasingly problematic in various respects. I will explain.

February 6, 2019 Video

[78] For example, Ms. Wilson put in evidence a video recording of an interaction between Mr. and Mrs. Wilson on February 6, 2019, within a month of the separation.

[79] I note that I am aware of the increasingly prevalent opposition to the use of surreptitious recordings in the family law setting, and a line of cases positing that the admission of such evidence might prejudice the administration of justice given, among other concerns, the potential for such evidence to be highly divisive in a setting already characterized by a high degree of conflict.

[80] I also note the persuasive work of Professor Martha Shaffer in this area, and her thoroughgoing analysis of the potential adverse effects of allowing such evidence in her article Surreptitiously Obtained Electronic Evidence in Seven Simple Steps, (2019) 38 CFLQ, at p. 5, cited with approval in DeGorgio v. DeGorgio, 2020 ONSC 1674.

[81] Professor Shaffer argues that, given the potential case-specific prejudice and wider systemic prejudice, such evidence should be admitted only when its probative value is high enough to offset these prejudicial consequences.

[82] I accept the wisdom and prudence of this guidance, and appreciate that therefore, the court ought to proceed with caution in admitting this type of evidence (of which, as seen below, there were two instances in the trial before me). Nonetheless, I would also say that this evidence, the authenticity of which was not challenged by Mr. Wilson, provided an impression of Mr. Wilson’s attitude and conduct that would not have been conveyed by documentary evidence alone, and which was very helpful in my assessment of the parties’ respective demeanor. On balance, albeit that I acknowledge and accept the need to proceed carefully relative to such evidence, I found that its probative value here overcame the potential prejudice inherent in surreptitious recordings.

[83] The video was recorded in circumstances in which Ms. Wilson attended at the matrimonial home, where Mr. Wilson was continuing to live at that point, to pick up the boys to bring them to her new residence.

[84] She was doing so, she testified, in accordance with a schedule that the parties had agreed to with input from a marriage counsellor whom they had consulted to help manage their relationship and arrangements in the early post-separations phase. Specifically, Ms. Wilson testified, and I accept, that with the counsellor’s assistance the parties had established a 2-2-3 parenting time structure. I have no reason to believe that Ms. Wilson’s attendance at the time the video was recorded was other than in keeping with that agreed schedule.

[85] In the video, Mr. Wilson can be heard berating Ms. Wilson in a loud voice. He says, among other things, and in response to Ms. Wilson advising that she was there to pick up the boys in accordance with the agreed schedule, that he “never agreed to anything”. Consistent with that claim, Mr. Wilson did not in fact allow the boys to leave with their mother on that occasion. More troublingly, he also repeatedly and loudly threatens Ms. Wilson that she is “on a police record”, that “all the schools know about her”, and that she is a criminal and a child abductor. None of this is of course true, which is bad enough in and of itself, but what makes it even worse is that it is clear that Mr. Wilson’s irrational rant was within earshot of one or more of the boys.

[86] Without attempting to be exhaustive, there are several other examples of conduct on the part of Mr. Wilson that is inappropriate.

Texts and Emails

[87] There are numerous texts and emails in evidence that Mr. Wilson authored, many of which strike an unacceptable tone and feature inappropriate content. In keeping with Mr. Wilson’s outburst recorded on February 6, 2019, on January 10 and 11, 2019, within an exchange of texts between the parties in the immediate aftermath of the separation, Mr. Wilson writes (among other things):

(how effed up would it be with police at Whitney [school], our kids will never forget what you are trying to do, DON’T DO IT!!!!!)….okay so it turns out Toronto police division 53, I know people there….I think you are getting twisted, mean, self‑serving child-damaging advice…DON’T DO IT!!!!

Mr. Wilson attaches to this text a definition of “Abduction” referencing the Criminal Code, R.S.C., 1985, c. C-46.

[88] In an email to Ms. Wilson’s lawyer in the fall of 2019, Mr. Wilson refers to the boys as “bruised and deprived” while in Ms. Wilson’s care, refers to Ms. Wilson as “sick” and “handicapped”, and says “she needs her mom or a nanny or a HUSBAND”. It was apparent in the evidence at trial, including Mr. Wilson’s testimony, that the (numerous) references to Ms. Wilson’s “handicap” refer to her (mild) ADHD.

[89] Mr. Wilson’s correspondence also denigrates Ms. Wilson’s mother’s involvement in assisting Ms. Wilson, alleging that “grandma instigated a money-chase escapade based on false victim claims” and adding that “I did not sign up for her mother destroying our household for selfish or ill reasons, damaging my children for ego.” Finally, in the same email, Mr. Wilson admonishes Ms. Wilson’s lawyer to “consider your role in destroying this family as an ethical matter, also being a puppet for an unhealthy agenda for $”.

[90] Later on the same day, in a further email to Ms. Wilson’s lawyer, Mr. Wilson says: “Ros [Ms. Wilson] has an unstable and unsure mind and it is being manipulated, possibly for an anticipated cash-out…there is illness and selfishness going on and I hope you have the foresight to think about the kids before anything else.”

Actions in Late 2020

[91] Mr. Wilson also exhibited egregious behavior in connection with events in late 2020 and early 2021. As noted above, the matrimonial home was sold in late 2020. The closing happened on December 10, 2020. That closing date had been pushed back twice from an original closing date of November 25, 2020, largely as a result of Mr. Wilson’s (almost certainly intentional) lack of meaningful cooperation with a real estate lawyer and others involved in closing the purchase. This lack of cooperation included Mr. Wilson not having a working phone such that he was incommunicado at various critical junctures. Mr. Wilson’s steadfast non-cooperation with the closing process ultimately meant that a court order was required for the transaction to close.

[92] After leaving the matrimonial home once the transaction finally did close, Mr. Wilson relocated to a suite hotel in the same neighborhood as Ms. Wilson’s new residence. It appears that Mr. Wilson had a working phone again by mid-December, but he refused to advise Ms. Wilson of his new phone number or his new address.

[93] One example of an unfortunate consequence of Mr. Wilson’s reclusion at this stage related to a trip that, to his knowledge, Ms. Wilson had booked with the boys and her family to go to Florida over the 2020 Christmas holiday period.

[94] Mr. Wilson did show up to collect the boys for parenting time during the December 10-17, 2020 timeframe, but in addition to not providing his contact number, would not tell Ms. Wilson where he was living (and taking the boys). He also refused to provide the boys’ passports to Ms. Wilson, or to sign a travel consent document for the immediately pending trip.

Mr. Wilson’s Non‑Cooperation with Proposed Travel Earlier in 2020

[95] This reluctance or refusal to allow Ms. Wilson to travel with the boys was a recurring theme. Among other examples, Mr. Wilson had taken a similar stance in the summer of 2020, when Ms. Wilson had planned to take the boys to Maine to visit with her family. On that occasion, literally at the last minute and despite having previously agreed that the boys could travel with Ms. Wilson to Maine, Mr. Wilson refused to provide their passports or provide a travel consent, unless and until Ms. Wilson obtained a doctor’s note countenancing the trip in the setting of the pandemic – and there was some suggestion that Mr. Wilson was insisting that the note would have to be prepared by Ms. Wilson’s father or another relative of hers who was also a physician.

[96] On that occasion in the summer of 2020, Mr. Wilson closed himself in the house (at that point, still the matrimonial home at 105 Garfield), and refused to provide the travel documents, or even to come out or to let Ms. Wilson or the boys in. They sat on the front lawn for a couple of hours, hoping that Mr. Wilson would relent. He did not do so, and ultimately the proposed summer trip to Maine was cancelled.

[97] I also note that in the context of a discussion of Mr. Wilson’s refusal to allow the boys to travel to Maine with their mother, there were more unsavory texts from Mr. Wilson to Ms. Wilson, including the following text obliquely threatening disclosure to the boys of Mr. Wilson’s characterization of Ms. Wilson’s father as a child molester:

Get a Dr. note and affirm OCL recommendation about your father not being alone….for this item I think the Kids don’t need to know, but if you continue abusing this mind with falsities, I will have no choice but to tell them the real reason for Maine delay – you and your family!!!

[98] I should clarify, relative to Mr. Wilson’s reference to an “OCL recommendation” that a report was in fact provided by the Office of the Children’s Lawyer, on consent of the parties, earlier in 2020. While that report, which was referred to in part in the evidence before me, does contain Mr. Wilson’s allegation about Ms. Wilson’s father, there was no evidence before me about any finding or recommendation premised on that allegation.

[99] To put this issue to rest, I find that there is simply no evidence whatsoever, and no reason to believe this serious and spurious accusation, and it does not reflect at all well on Mr. Wilson that he rolled out this allegation and related threats at various points at which he perceived it would advance his position or justify his behaviour.

A. Mr. Wilson’s Non‑Cooperation with Proposed 2020 Year‑End Travel, with Court, and with Police

[100] The 2020 year-end trip to Florida was intended, in part, to make up for the lost trip to Maine. During this trip the boys would see Ms. Wilson’s parents and other family members whom they would have seen in Maine that summer (had Mr. Wilson not prevented that trip).

[101] When Mr. Wilson refused to provide his whereabouts, let alone the travel documents, by mid-December when the flight to Florida was scheduled, counsel for Ms. Wilson arranged to have a member of her office staff follow Mr. Wilson to his new home – after he had picked up or dropped off the boys – in order to find out where he was staying.

[102] Having done so, Ms. Wilson brought an urgent motion before this court.

[103] That motion was heard, on notice, before Faieta J. (as it turned out in two instalments, but I refer here only to the first attendance).

[104] On December 15, 2020, Ms. Wilson sought an order to require that Mr. Wilson release to her their sons’ (American) passports together with their original long form American birth certificates, and dispensing with the need for Mr. Wilson’s signature on a travel consent form to permit the proposed trip. Importantly, Ms. Wilson also sought an order that the Metropolitan Toronto Police be authorized to enforce the order on an urgent basis.

[105] Justice Faieta noted in his December 16, 2020 endorsement, that although Mr. Wilson had been served with notice of the hearing, he did not attend. His Honour wrote that counsel for Ms. Wilson had served Mr. Wilson directly based on the mistaken understanding that then-counsel for Mr. Wilson had been removed from the record. Given that Mr. Wilson’s counsel at that stage remained on the record, that counsel – Mr. MacLennan – was contacted and in fact attended (remotely) at the hearing. Mr. MacLennan advised the court that he was in the throes of removing himself from the record, and was receiving no instructions from Mr. Wilson.

[106] As part of his decision, Faieta J. recited various relevant facts, noting in passing that by consent order dated December 19, 2019 (about which more below in the context of the discussion about support issues), Mr. Wilson had been ordered to pay child support of $2,688 per month and spousal support of $2,000 per month. His Honour said that “It would be an understatement to say that the Respondent has failed to comply with that Consent Order”, observing that “Justice Kraft found that the Respondent father was more than $48,000 in arrears following a settlement conference on November 4, 2020”.

[107] As to the events relating to and following the sale of the matrimonial home (in the days immediately prior to the attendance before him), His Honour wrote:

The Respondent father did not sign the closing documents related to the sale of the matrimonial home and chose to barricade himself in that home…On November 27, 2020 Justice Hood granted the Applicant mother’s motion to dispense with the Respondent’s requirement to sign any and all closing documents, as required by his real estate lawyer Mr. Lewis Mitz, and he permitted the sale to close…Counsel for the respondent attended this motion but had no instructions from the Respondent…The sale of the matrimonial home was completed as ordered…Subsequently, the Respondent father has refused to tell the Applicant mother where he lives when he is with the children. He has also refused to provide her with the children’s passports and birth certificates.

[108] Justice Faieta noted the contents of Ms. Wilson’s affidavit (laying out in more detail the circumstances described above) and that it had been necessary for “someone to follow the [Respondent] after he picked up the children for a visit and found that he was living at the Town Inn Suites in downtown Toronto.”

[109] His Honour granted the gist of the relief sought, saying:

This motion should have been entirely unnecessary had the Respondent had not been unwilling to communicate with the Applicant (sic). They share three children. The Respondent has a responsibility to engage with the Applicant on matters pertaining to the children’s welfare and to do so in a responsible and timely manner. The Applicant should not have been required to come to this court in order to seek this relief in these circumstances...In conclusion, I find that it is in the best interests of the children to permit them to visit their maternal grandparents from December 20, 2020 to December 29, 2020 as requested by the Applicant on certain conditions, to make the other Orders sought by the Applicant mother as well as additional Orders.

[110] The evidence before me was that pursuant to Faieta J.’s Order dated December 16, 2020 (the “December 2020 Order”), Ms. Wilson attended with police to Mr. Wilson’s residence at the Town Inn Suites on December 17, 2020.

[111] The events on that day represent, in my view, the nadir of Mr. Wilson’s extensive problematic conduct.

[112] I heard testimony from P.C. Jason Nicholls, who was one of the Constables who attended at Mr. Wilson’s residence to enforce the December 2020 Order.

[113] By way of summary of P.C. Nicholls’ evidence, he said that Mr. Wilson smelled “extremely strongly” of alcohol and was uncooperative and combative throughout the Constables’ interactions with him. At points during their encounter, Mr. Wilson offered certain information purportedly in compliance with their requests, but he did so sparingly, grudgingly and more or less belligerently over the course of several hours.

[114] Ultimately, because Mr. Wilson would not let them enter his residence, it was necessary for the two Constables (P.C. Nicholls and his partner) to ask that a warrant be obtained to search within Mr. Wilson’s residence for the material covered by the December 2020 Order, and for two other officers to bring that warrant to be served on Mr. Wilson. Even still, having delivered the warrant, it was necessary for the police to cut the chain on Mr. Wilson’s door with bolt cutters in order to enter his unit.

[115] The police made the decision to place Mr. Wilson under arrest as a result of his refusal to comply with the December 2020 Order. P.C. Nicholls testified that Mr. Wilson refused to cooperate in the arrest, such that he had to be physically restrained and positioned manually to apply handcuffs.

[116] At that point, P.C. Nicholls related, Mr. Wilson appeared to become short of breath, and told the assembled police that he was “having a heart attack”.

[117] An ambulance was summoned and Mr. Wilson was taken to the Toronto General Hospital.

[118] Constable Nicholls and his partner were obliged to stay at the hospital while Mr. Wilson was assessed, adding several more hours to an already lengthy interaction. The conclusion of the assessment was that Mr. Wilson was found to exhibit no evidence of a heart attack or any other health issue.

[119] The Constables therefore took Mr. Wilson to the police station. Ultimately, Mr. Wilson was released from custody, I believe later that night, on certain conditions.

[120] Ms. Wilson made an audio recording of portions of Mr. Wilson’s interactions with the police that day, recorded at points at which she was within earshot of the exchanges. The recording was entered into evidence.

[121] While again acknowledging the persuasive policy reasons for carefully attenuating the admissibility of such evidence, once again I found that the actual soundtrack of Mr. Wilson’s interaction with the police that day captured that exchange in a highly probative way and overcame the concerns about the potential prejudice associated with surreptitious recordings.

[122] In that recording, Mr. Wilson is again heard to be loud and abrasive, pronouncing that “Covid trumps a Court Order” and generally being uncooperative and non-compliant.

[123] Mr. Wilson’s version of these events in his evidence before me was to maintain that he was in fact being appropriately cooperative with the police, albeit cautiously, and over the course of some time.

[124] He asserted that the “extremely strong” smell of alcohol he exuded was explained by the fact that he had had one drink the night before his interaction with the police (which I note did not begin until mid-day on the day in question). I find Mr. Wilson’s explanation in this regard to be nonsensical and not credible. Moreover his claims to have been cautiously cooperative with the police are belied by his belligerence captured in the audio recording.

[125] He went so far as to allege that in placing him under arrest, the Constables had physically assaulted him, breaking his glasses, kicking him in the ribs, and calling him a “deadbeat” and a “bum”.

[126] There is no evidence that Mr. Wilson reported, let alone suffered, any of the alleged physical abuse or injuries, and no suggestion that any such injuries were reported or detected during the assessment of Mr. Wilson’s condition at the Toronto General Hospital while health professionals were investigating the alleged heart attack.

[127] I find that Mr. Wilson was likely drunk, was certainly belligerent, and generally behaved in an unruly and unacceptable manner. P.C. Nicholls on the other hand, whom I had the chance to assess while he testified, was appropriately restrained and measured in his conduct, particularly given how frustrating it clearly was to deal with Mr. Wilson over the course of the day.

[128] While I understand and acknowledge that emotions can run high in the setting of an ongoing “high conflict” dispute in the family law setting, there is simply no reasonable excuse for Mr. Wilson’s behaviour in his encounter with the police. Mr. Wilson is a very bright and educated adult, and frankly he should know better.

Mr. Wilson’s Non-Cooperation and Attempt at Leverage for 2022 Year-End Travel

[129] Ms. Wilson planned to travel to Florida again with the boys for the Christmas holidays in December of 2022. Remarkably, apparently undaunted by the events discussed above, Mr. Wilson, by then represented by different counsel (who was on the brink of removing himself form the record) again refused to cooperate. He purported to make it a condition of the proposed trip that Ms. Wilson agree to a distribution from the net proceeds of the matrimonial home sale remaining in trust to the tune of $50,000.00 to each party. While an order was ultimately worked out, Mr. Wilson’s conduct and demeanor in demanding payment in exchange for a travel consent showed that he was un-chastened by prior court and police involvement.

Parties’ Position on Issues to be Decided

[130] As noted at the outset of this endorsement, the matters at issue between the parties include decision-making relative to the children, parenting time, and financial issues including child and spousal support and equalization of property.

[131] Ms. Wilson’s position is that:

(a) She ought to be granted final decision-making authority;

(b) Mr. Wilson’s parenting time ought to be reduced from the status quo, and ought to be conditional on certain requirements;

(c) Child and spousal support ought to be paid to her, including retroactively, in lump sums of $112,000.00 for child support and $106,000.00 for spousal support, based on the amounts ordered by Paisley J. in 2019, being $2688.00 per month for child support and $2000.00 in spousal support;

(d) Mr. Wilson should pay to her an equalization payment in the amount of $601,000.00 (less distributions to date from the net proceeds of the sale of the matrimonial home);

(e) Mr. Wilson should pay to her one-half of the value of certain furniture held in storage, in the amount of $15,000.00 (one half of a suggested value of $30,000.00); and

(f) Mr. Wilson should pay Ms. Wilson full indemnity costs, in the amount of $180,000.00.

[132] For his part, Mr. Wilson seeks:

(a) That an updated report from the OCL be provided;

(b) That the parenting time between the parties be split equally, either on the current 2‑2‑3 basis or, preferably, on a basis giving each party parenting time for a week at a time;

(c) That a parenting coordinator be assigned and that regular meetings take place with this person to coordinate parenting time, over which this professional shall have the “final say”;

(d) That both parties be obliged to undergo mental health counselling;

(e) That a vacation schedule reflecting the status quo be maintained (and he suggests various provisions regarding travel documents);

(f) An order precluding any documents from these proceedings being sent to the children’s schools, and retrieving any such documents already provided to schools;

(g) That a trust for the children be established and immediately funded with $50,000.00 from the proceeds of sale of the matrimonial home;

(h) That any equalization payment otherwise found owing to the applicant is deemed already to have been satisfied (as a result of incomplete disclosure by the applicant relative to her jewelry in particular);

(i) That $400,000.00 from the proceeds of sale of the matrimonial home be set aside to pay the respondent’s Canadian tax arrears and that a further $125,000.00 be set aside to pay his U.S. tax arrears;

(j) That his costs be payable in the amount of $108,000.00; and

(k) Various other and related relief.

Evidence of Psychologists

[133] In relation to the issues regarding decision-making and parenting and potentially relative to costs, there is additional evidence that I need to consider.

[134] This evidence came in part from Ms. Wilson, and in part from two psychologists who testified before me as, in effect, participating experts (as that term is defined in the decision of the Court of Appeal for Ontario in Westerhoff v. Gee, 2015 ONCA 206, 124 O.R. (3d) 721).

A. Evidence of Dr. Susan Walker-Kennedy

[135] The evidence of the first of those psychologists, Dr. Susan Walker-Kennedy, proved to be not terribly contentious.

[136] Dr. Walker-Kennedy was ordered by Nakonechny J. in November of 2021 to undertake and report on psychological testing of each of Ms. Wilson and Mr. Wilson.

[137] While she covered a fair bit of ground, the most salient aspects of her report and evidence were to opine that:

(a) Ms. Wilson’s ADHD is mild, and there was no evidence to suggest that the condition was negatively impacting Ms. Wilson’s ability to function appropriately;

(b) Mr. Wilson exhibited clinically significant elevations of anger in various domains, and that for example, Mr. Wilson has “poor control over verbal or physical expression of his anger compared to most people.”

[138] In accordance with her somewhat limited mandate, and allowing in her evidence that co-parenting would be challenging for these parties, she recommended that:

(a) Ms. Wilson and Mr. Wilson should improve their communications with one another;

(b) They should retain the services of a Parenting Coach to help minimize conflict, improve communications, and assist in resolving disputes over specific issues like changes to holiday schedules;

(c) They should communicate with one another about the children using Our Family Wizard;

(d) They should refrain from denigrating one another; and,

(e) Both parents should take a recommended parenting course and review certain specified educational resources.

[139] It appears that, to varying extents, the parties in fact abided by a number of Dr. Walker‑Kennedy’s recommendations.

[140] Dr. Walker-Kennedy made it clear in her testimony that she did not undertake – because she was not asked or mandated to undertake – a full section 30 investigation, such that she was not able to make detailed recommendations on the parenting front (beyond those limited recommendations set out above). She did not, as part of her mandate, meet or interview the children.

[141] In his cross-examination of Dr. Walker-Kennedy, Mr. Wilson initially denied ever having met her. He was reminded, however, and ultimately appeared to accept completely that he and Dr. Walker-Kennedy had in fact met four times via Zoom, including a full-day session in which Dr. Walker-Kennedy administered a battery of psychological tests.

[142] Having been reminded of these interactions, Mr. Wilson did not appear to contest the thrust of Dr. Walker-Kennedy’s conclusions. He did seem to suggest that his anger issues were only in relation to the separation and divorce proceedings. This seems at odds with Dr. Walker-Kennedy’s testimony and the results of psychological testing, and I do not find that Mr. Wilson’s anger issues are solely related or limited to these proceedings.

B. Evidence of Dr. Abby Corrigan

[143] The second psychologist who testified, Dr. Abby Corrigan, provided evidence that was troubling and controversial.

[144] At Dr. Corrigan’s request, and notwithstanding the open court principle, I was persuaded to receive her evidence in a sealed record.

[145] That decision was driven in large part by the imperative and benefit of avoiding certain aspects of Dr. Corrigan’s evidence appearing on a public record, inasmuch as they concerned sensitive information involving a child.

[146] I do not propose to circumvent my own order in these reasons, but suffice to say that Ms. Wilson argues, based on the sealed evidence, that certain conduct of Mr. Wilson disclosed and discussed in Dr. Corrigan’s testimony should lead me to reduce his parenting time and to place conditions and restrictions on whatever parenting time I order.

[147] I have genuine concerns about conduct described in that evidence which, as will be seen, informs the structure of the order I make about parameters on Mr. Wilson’s parenting time.

[148] On the other hand, there is some uncertainty and dispute about the veracity of certain events reported to and related by Dr. Corrigan (who did not purport to opine on exactly what did or did not happen, but was more focused on the condition and needs of a child). Moreover, the most concerning of the alleged events at issue are somewhat dated, even if accurate, and there is no evidence of like behaviour having been exhibited by Mr. Wilson in his parenting time with the children in the last few years.

[149] That said, even if I give Mr. Wilson the benefit of the doubt with respect to some of these reports, I am nonetheless very troubled by the array of behaviour he has exhibited throughout the course of these proceedings, as discussed in a limited way above.

[150] I saw, in Mr. Wilson’s demeanor at trial, glimpses of his difficulty controlling his temper at times.

[151] He also displayed little insight into or ownership of many of his behaviours. He has a pronounced tendency to blame others for problematic conduct on his part, and a corresponding unwillingness to take responsibility for many of his actions.

[152] Even in his closing submissions, Mr. Wilson alleged, unpersuasively in my view, that Ms. Wilson had “lied” about various matters at trial. I find that Ms. Wilson was an entirely credible witness. For the most part, notwithstanding his personal attacks on Ms. Wilson, and some of the inappropriate behaviours described above, I find that Mr. Wilson, too, was largely credible.

[153] I also believe that Mr. Wilson loves and wants the best for his children. It appears to me that, particularly when his temper bubbles to the surface, he tends to “get in his own way” and engages in irrational behaviour “in the moment”.

Additional Considerations Regarding Mr. Wilson’s Conduct

[154] Nonetheless, I cannot ignore the manifestations and implications of Mr. Wilson’s explosive temper and consequent abusive conduct.

[155] Any proceeding involving children must be determined with the best interest of the particular child or children before the court as the paramount consideration.

[156] As Sherr J. wrote in L.S. v. M.A.F., 2021 ONCJ 554:

A starting point to assess a child’s best interests when making a parenting order is to ensure that the child will be physically and emotionally safe. It is also in a child’s best interests when making a parenting order that his or her caregiver be physically and emotionally safe…

[157] Subsection 24(3) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, provides a list of factors for the court to consider related to the circumstances of the child(ren), including any family violence and its impact.

[158] In that regard, in the recent decision of the Supreme Court of Canada in Barendregt v. Grebliunas, 2022 SCC 22, 71 R.F.L. (8th) 1, the court noted that:

The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives.

[159] Despite his protestations, there are many examples in the evidence of Mr. Wilson behaving in an abusive and even violent way. I struggled, therefore, with how to balance those toxic tendencies against his love for his sons and his desire to do the best for them.

[160] As set out below, I am prepared, with built-in controls, to allow Mr. Wilson to have parenting time with his sons equivalent to that of Ms. Wilson.

[161] Mr. Wilson must understand, however, that this parenting time is not unfettered, and that any further problematic conduct on his part will have dramatic consequences to his access to his sons, and that in particular, if there is any further abusive behaviour on his part, he risks losing his parenting time altogether.

Decision re Parenting Time

[162] Accordingly, I find that while Mr. Wilson should continue to have extensive parenting time with the boys, essentially equal to that of Ms. Wilson, Mr. Wilson’s parenting time should be coupled with certain conditions. I also believe that Mr. Wilson should be on a “short leash”. That is, if there is evidence of his temper getting the better of him again, causing him to act irrationally and/or in a fashion that threatens the best interests of his children, the matter should come back before this court and additional consequences and controls should be considered.

[163] With that proviso in mind, I find as follows:

(a) The parties should engage a parenting coach to be available to consult as necessary as discussed below. If the person previously involved in providing parenting coaching to the parties is available, then that person should again fill this role. If not, then Ms. Wilson should provide three names of candidates to serve as a parenting coach to Mr. Wilson, and within seven days of receiving the list of candidates, Mr. Wilson should pick one of them. Whoever is chosen as the parenting coach, the parties should meet with and provide information to that person as he or she directs and should abide by his or her directions;

(b) With respect to decision-making, the parties should consult with one another and attempt to agree on all matters involving their sons. If and when the parties disagree about a decision relative to one or more of their boys, they should consult with the parenting coach for his or her recommendation and should in those circumstances follow that recommendation. If the parenting coach is unable to make a recommendation, then Ms. Wilson shall have the ultimate decision-making authority and shall make final decisions, as much as possible taking into account and respecting the input from Mr. Wilson;

(c) All communications between the parties shall be through Our Family Wizard (“OFW”) which each party should pay for and renew annually;

(d) All day‑to‑day decisions shall be made by the parent caring for the children at the time such a decision needs to be made. In the event of an emergency, the parent with the children at the time will immediately contact the other parent to provide the details;

(e) With respect to parenting time, I am prepared to allow the parties equal parenting time, subject to the directions set out above and below.

(f) That parenting time is to be on a 5-5-2-2 basis, in keeping with certain concerns and recommendations from Dr. Corrigan;

(g) However, Mr. Wilson’s parenting time is premised and conditional upon him attending for psychological counselling, including counselling aimed at anger management, such counselling is to be structured in accordance with recommendations as to the counsellor or counsellors and the frequency of counselling visits, from the parenting coach;

(h) To the extent that Mr. Wilson fails to abide by such recommendations, or acts in a fashion which in the opinion of the parenting coach is contrary to the children’s best interests, Ms. Wilson may bring such non-compliance or inappropriate behaviour to the attention of the court and the court may modify the parenting time as necessary, up to, and including, a temporary or permanent termination of Mr. Wilson’s parenting time;

(i) The parties shall share all holiday parenting time equally. Where a holiday is shared evenly, the first day of the holiday shall commence the day school ends and the second part shall commence at 4:00 p.m. on the middle day of the holiday and end the morning the children return to school.

(j) If a trip is proposed, for example over the Christmas holidays, the parties may, with the assistance of the parenting coach as necessary, negotiate an arrangement whereby the parties will alternate years for primary parenting of the children over the holiday, with the proviso that even if one parent has the children for the larger part of the holiday (for example where there has been an agreement to facilitate a trip), the other parent shall nonetheless have parenting time with the children for some portion of the holiday, to be negotiated and for not less than two days.

(k) In the summer, in keeping with the current arrangement, Ms. Wilson will have the boys for two weeks commencing August 1^st and Mr. Wilson will have the boys for two weeks commencing July 1^st.

(l) Ms. Wilson shall hold the boys’ travel documents and birth certificates. She shall release them to Mr. Wilson when he is travelling with the boys. He shall then promptly return the passports and birth certificates to Ms. Wilson when he returns from the trip.

(m) Mr. Wilson shall provide his itinerary for any proposed travel at least 30 days in advance of the travel including destinations and contact information. Ms. Wilson shall provide Mr. Wilson with a travel consent for the dates he proposes provided she consents to the proposed travel (such consent not to be unreasonably withheld).

(n) Likewise, even though Ms. Wilson will hold the travel documents and birth certificates, she shall provide to Mr. Wilson her itinerary for any proposed travel 30 days in advance of the travel including destinations and contact information. Mr. Wilson’s consent for Ms. Wilson’s travel with the boys is not required; in other words Ms. Wilson may travel with the boys without the need of any consent from Mr. Wilson.

Discussion of Financial Issues

[164] The financial issues in this case are driven and exacerbated by the fact that neither party has engaged in remunerative employment or activity since 2014 when they left New York.

[165] To her credit, and as noted above, Ms. Wilson has resumed her education with a view to obtaining a position in her field and expects to be able to do so within the next year or so. This is laudable, but also to be expected in the circumstances.

[166] Mr. Wilson, on the other hand, has no apparent current plan to earn any income.

[167] This is not a tenable position. Mr. Wilson is still reasonably young, is well‑educated and has considerable experience in the workplace. He has known for years that the funds from his J.P. Morgan package were dwindling, and says that he has borrowed heavily from his parents to afford his accommodation and other costs of living for the last few years. He also appears to owe outstanding tax arrears in both the United States and Canada, although the amounts of those debts are apparently the subject of ongoing negotiation. In short, he can and should find work.

[168] On December 19, 2019, Paisley J. made a consent order requiring Mr. Wilson to pay temporary “without prejudice” table child support for the three boys of $2,688.00 per month, and temporary “without prejudice” spousal support of $2,000.00 per month.

[169] These payment obligations were premised on an agreed income for Mr. Wilson of $149,333.00 per annum.

[170] On September 29, 2020, Ms. Wilson brought a motion before Kraft J. seeking to enforce the December 19, 2019 Order of Paisley J.

[171] The uncontroverted evidence before Kraft J. was that, “Despite the fact that the Paisley J. support Order was made on consent of the parties, the Statement of Money Owing by the husband, filed by the wife in support of this default hearing, indicates that the husband has never complied with this order.” Elsewhere in the evidence before me it is suggested (and not contested) that as a result of Mr. Wilson’s complete non-compliance with the Order of Paisley J., outstanding arrears by the fall of 2020 exceeded $48,000. Those arrears were confirmed in Faieta J.’s December 16, 2020 endorsement discussed above.

[172] In an affidavit he swore in that context, Mr. Wilson confirmed that he had fallen into arrears, and that he had “no means to comply with the order”.

[173] At the time the parties were before Kraft J., Her Honour noted that the sale of 105 Garfield was then pending, that an agreement had been reached to sell the house for $3.5 million, and that there were encumbrances registered on title to the house in the approximate amount of $1.1 million.

[174] Justice Kraft confirmed Mr. Wilson’s position before her that he “consents to an order that the support arrears owing by him to the wife pursuant to the Paisley J. support order be paid to her on the closing of the sale of the parties’ matrimonial home from the net sale proceeds.”

[175] Ms. Wilson, at that time, also sought an order that additional amounts be held back from the proceeds of sale of the matrimonial home as security for Mr. Wilson’s subsequent support obligations (both child and spousal) under the Paisley J. support order. Justice Kraft noted that: “Neither party is employed, and the wife is concerned that if there is no security for her support entitlement, the husband will continue to claim that he has no means to pay support and he will be in default of the Paisley J. support order once again once his arrears are paid.”

[176] Her Honour recorded that:

The husband’s position is that the Paisley support order contemplates that the support will be reviewed upon the sale of the matrimonial home. It is his intention to bring a motion to change the support order because he deposes that he was never earning the income of $149,000 on which the Paisley support order was based and that, without loans from his family, he would have no means to support the family. Further, the husband’s position is that there is no need for an order for security of the wife’s support claim because she has to consent to the Transfer/sale given that it is a matrimonial home. Accordingly, he maintains that she is “protected” because if she does not agree with how the sale proceeds are being distributed, she does not have to consent to the sale.

[177] Her Honour held, relative to Mr. Wilson’s position:

I do not agree. Title to the matrimonial home is registered in the sole name of the husband. While the husband has consented to the arrears of child and spousal support owing being paid from the proceeds of sale, there is no guarantee that the husband will pay the ongoing child and spousal support once the sale of the matrimonial home closes.

[178] In the result, in addition to ordering the arrears to be paid from the proceeds of sale of the matrimonial home, and making other procedural orders, Kraft J. ordered that an additional $75,000 be held in trust from the proceeds of sale as security for the payment of ongoing child and spousal support pursuant to the Order of Paisley J.

[179] Justice Kraft’s observations proved prophetic. That is, in April of 2021, the parties were again before Faieta J. and entered into a consent order. In addition to confirming an agreed distribution from the proceeds of sale of 105 Garfield in the amount of $150,000.00 to each party, the share of which Ms. Wilson was to receive was “an advance on any equalization payment owed to her by the Respondent”, His Honour ordered an additional amount of $8,064.00 to be paid to Ms. Wilson from the sale proceeds as an “uncharacterized sum” to be “credited to any support or other obligations owed by [Mr. Wilson] to [Ms. Wilson] following a determination of the support motion on August 10, 2021 and the Court’s characterization of same.”

[180] Justice Faieta’s consent order also confirmed that, “notwithstanding the Applicant’s position that the interim and temporary without prejudice order of Justice Paisley rendered December 19, 2019 is valid and ought not to be stayed or varied, the Applicant consents to a stay of Justice Paisley’s…order…pending the return of the Respondent’s motion to review support scheduled for August 10, 2021 or further agreement of the parties”.

[181] It appears that Mr. Wilson had scheduled a motion for August of 2021 in which he would seek to vary his support obligations, presumably on the basis that he was not earning the $149,000 on which Paisley J.’s order was based (or any amount). It also appears that in exchange for agreeing to a temporary stay of Paisley J.’s support order pending the hearing of that motion, Ms. Wilson received the concession that the $150,000.00 paid to her at that time would be an advance on any equalization payment owed to her, and that the further amount of $8,064.00 would be paid to her on account of further support amounts owing at that time.

Argument re Stay, and Decision on Support Payments

[182] Mr. Wilson referred to the stay provision in this consent order made by Faieta J. a number of times in evidence and argument, and appears to rely on it to suggest that his support obligations are somehow terminated (or permanently stayed).

[183] It is clear from the context and content of the order that this is not the case, and that the stay was intended to be in effect until Mr. Wilson’s motion to vary support then pending for August of 2021 (three and a half months after Faieta J.’s consent order).

[184] On August 10, 2021, the date appointed for Mr. Wilson’s motion to vary, the parties entered into a further consent order before Nakonechny J. At that time, Her Honour extended the stay, pending the return of the motion or trial on terms including the release to the parties from the sale proceeds of the matrimonial home of the further amount of $85,000.00 each “- to be characterized”. In my view, this does not mean, as Mr. Wilson appears to suggest, that he has no ongoing support obligations. Rather, it appears to mean that the parties punted that issue down the road on consent, in exchange for receiving further distributions from the matrimonial home sale proceeds.

[185] The effect of the 2021 Orders of Faieta and Nakonechny JJ., as I read them, is not to extinguish Mr. Wilson’s support obligations, but rather to defer the determination of the validity and amount of those obligations with the benefit of an overall record. The urgency of that determination, from Ms. Wilson’s perspective, was clearly attenuated by the interim agreements for distributions from the proceeds of sale of 105 Garfield, but the issue remains to be adjudicated.

A. Income to be Imputed to Each Party

[186] In that regard, first I am prepared to impute modest income to Ms. Wilson from the date of separation until she resumed her education. While I accept that Ms. Wilson had numerous obligations relative to the children and that in order to land a job in her chosen field, she would have to upgrade her education as she is now doing, it is also fair to observe that she had sufficient time to engage in at least part-time employment, and so I impute to her income of $20,000.00 per annum during that time frame.

[187] I also impute income to Mr. Wilson for the period from separation until trial.

[188] Given that the parenting schedule was equal, he too had ongoing obligations relative to the children. As such, in my view, imputing to him an income of $149,000.00 on an ongoing basis (albeit the Order of Paisley J. in which that was done was on consent) is excessive.

[189] That said, I do not accept that Mr. Wilson could not have pursued remunerative employment, again at least on a substantial part-time basis. The boys have been in school full-time for a number of years, and Mr. Wilson is well-educated and well-experienced. I impute to him an income of $100,000.00 for the period from September 29, 2020 - when Kraft J. made an order pursuant to which the arrears outstanding under Paisley J.’s 2019 Order were paid up to date - until trial.

[190] From the date of the release of this decision and going forward, I increase Mr. Wilson’s imputed income to $125,000.00 per year.

[191] In the case of Ms. Wilson, proceeding on the basis that she will receive her PhD by roughly the spring of 2024, and based on evidence in the record about compensation in the field of guidance counselling, I impute to her, commencing on July 1 of 2024, an income of $50,000.00. This income may rise over time and can be revisited depending on the actual circumstances at hand in mid‑2024 and thereafter.

B. Child Support to be Paid

[192] I order that, based on these imputed incomes, Mr. Wilson is to pay table child support, retroactive to August 10, 2021 (when Nakonechny J. made her consent order), and going forward from today’s date. The retroactive portion of the child support payment is to be funded from the remaining proceeds of sale of the matrimonial home, and shall have the first priority for funding from those proceeds.

[193] In addition, as countenanced for example by the Court of Appeal for Ontario in Lafolla v. Lasota, 2021 ONCA 245, 53 R.F.L. (8th) 259, I order that an additional sum of $75,000.00 from the remaining proceeds of sale of the matrimonial home be set aside and used to fund the child support payments going forward from today’s date until the $75,000.00 is entirely paid out, at which point the respondent shall continue to pay child support based on the imputed income set out above, or his actual income at that time, whichever is greater.

C. Spousal Support

[194] With respect to spousal support, for the reasons set out above, in my view, retroactive spousal support in the amount specified in Paisley J.’s Order of December 19, 2019, which amount was approved in Kraft J.’s order in May of 2021 and apparently approved in Nakonechny J.’s Order of August 10, 2021, is excessive. Based on balancing the imputed incomes for the parties, I order that from August 10, 2021 to the date of trial, an amount for Mr. Wilson’s retroactive spousal support owed calculated based on $1,000.00 per month shall also be paid from the remaining proceeds of sale of the matrimonial home. Going forward, spousal support shall be paid from Mr. Wilson to Ms. Wilson in that amount using his actual income or the income I have imputed to him.

Equalization

[195] Any remaining amounts from the proceeds of sale of the matrimonial home are to be split evenly between the parties by way of equalization payments.

[196] In that regard, there is to be no credit or dispensation for Mr. Wilson’s tax arrears owing to the CRA and/or the IRS.

[197] The extent of Mr. Wilson’s actual tax arrears (in either jurisdiction) is unclear. There are competing strands in the evidence. There was evidence before me that, as of March of 2019, there was a zero balance owing by Mr. Wilson to the CRA.

[198] There is competing evidence suggesting that, owing to Mr. Wilson’s specific arrangements with the H & R Block firm, and a failure to provide for ongoing communications, he belatedly learned – he testified that he only learned about this as of the spring of 2022 – that he owed substantial arrears in both Canada and the United States.

[199] The timing of the respondent’s knowledge of the tax arrears is cloudy in the evidence before me. There is evidence suggesting that he knew or ought to have known about the claimed arrears by early 2020 (or even earlier).

[200] Moreover, Mr. Wilson’s own evidence is that the tax arrears, according to an accountant recently engaged by Mr. Wilson, may not be genuine, and may result from an error in the tax returns prepared and filed in both jurisdictions by the H & R Block firm. While presumably Mr. Wilson would still be obliged, if that theory is correct, to pay penalties and interest, it may well be that the principal amounts of alleged tax arrears in both countries will be extinguished or substantially reduced.

[201] Either way, I find that the potential tax arrears, if any, as well as any associated penalties and/or interest, are a product of Mr. Wilson’s complete lack of attention to those issues, likely compounded by his deliberate strategy of becoming largely incommunicado for stretches in 2020 and at other times. It is not fair for the applicant to be saddled with any financial responsibility for Mr. Wilson’s lackadaisical approach to his taxes. As such, while whatever amount from the remaining proceeds of sale going to Mr. Wilson can and should be used to address his outstanding tax obligations, such obligations are to be dealt with from his share only.

[202] There are various allegations on each side about items being improperly included, or excluded, from net family property calculations. To be clear, the disposition described above relative to equalization is intended to capture and subsume all such allegations.

Division of Items in Storage

[203] There are also claims relative to furniture and household items that have been kept in storage since some time shortly after the sale of the 105 Garfield property.

[204] Mr. Wilson has made the arrangements for the storage of those items, and has been responsible for dealing with the operators of the storage facility.

[205] It is not clear that either party wants, or proposes to make use of, most of the stored items.

[206] I direct that Mr. Wilson is to provide Ms. Wilson with access to the storage facility, so that she may determine what, if any, items are her personal property and what, if any, other household items she wishes to keep.

[207] In the case of her personal items, she may simply remove those items.

[208] With respect to other household items that she wishes to keep, the parties are to agree to a value for such items.

[209] Once both parties have removed any personal items, identified any other items they may wish to keep and agreed on values for such items, the balance of the stored items are to be sold, in a manner to be agreed and arranged between the parties, or forfeited to the operator of the facility, who may then sell such items by public auction or otherwise, at the discretion of the operator.

[210] With respect to household items either valued or sold by the parties, the intent is for each party to receive equal value overall, including for items for which the parties have agreed on a value and any items sold, and to the extent that one party takes items with an agreed value that is greater than what the other party takes, then that other party is entitled to a larger share of the proceeds of sale of the remaining items, if any.

No Present Need for Further OCL Involvement

[211] Dealing with a couple of remaining stray items, I do not find any need in this case to bring the OCL back in to update their 2020 report. The evidence from the two psychologists who testified, in my view, provided sufficient up to date information about the dynamics of this family, through which I could filter the other evidence that I heard.

Divorce

[212] I am prepared to grant a divorce, and either party may proceed to obtain the divorce on an uncontested basis and without costs.

Costs

[213] In terms of costs of the proceeding otherwise, I find that the applicant has been more successful, overall, than the respondent, and is entitled to costs.

[214] That said, I believe that the division of the remaining net proceeds of the matrimonial home described above, and the remaining obligation that the respondent will have to address the issues concerning his tax arrears will leave the applicant with considerably more funds than the respondent, at least in the near term. While Mr. Wilson’s conduct has been wanting in many respects, part of the goal here is to get him back into the workplace so that he can provide appropriate ongoing support for his sons, and to the extent set out above, to Ms. Wilson.

[215] As such, I exercise my discretion and order the respondent to pay the applicant relatively modest costs of the proceeding, which I fix at $50,000.00.

W.D Black J.

Date: June 5, 2023