Court File and Parties

COURT FILE NO.: FC-20-55534 DATE: 2023-07-04 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Alison Rebecca Zinger, Applicant – and – Szabolcs Bajari, Respondent

Counsel: Matthew Kelly, counsel for Applicant Edward Rae, counsel for Respondent

HEARD: January 30, 31, February 1, 2, 3, 6, 7, 8, 9, 10, 2023.

Justice R. F. MacLeod

Overview

[1] Szabolz Bajari (“Szabolcs”) was born August 17, 1975. Alison Zinger (“Alison”) was born on December 1, 1976. Szabolcs is an operations manager at his workplace, SIC Automation. Alison is a Certified Professional Account.

[2] Alison and Szabolcs began cohabiting in May 2001. They were married on July 14, 2007.

[3] The parties separated on July 3, 2017 but reconciled in May 2018. The parties separated on a final basis on March 10, 2019.

[4] Szabolcs and Alison are parents of three children: Isabella who is 13, Emma who is 11 and Adam who is eight years of age.

Issues

[5] The parties ask the court to determine decision-making authority for the children, the parenting schedule for the children, child support on an ongoing basis, arrears of child support, equalization of family property, and distribution of proceeds of sale of the matrimonial home. Alison also seeks a restraining order against Szabolcs.

Issue 1: Parenting

[6] Alison requests sole decision-making authority for all three children. She asks that the children reside primarily with her. Szabolcs seeks sole decision-making authority for the children or, in the alternative, joint decision-making for Emma and Adam but sole decision-making authority for Isabella.

Parenting: Relevant Facts

[7] On July 3, 2017, there was an incident between the parents. The main cause of this incident was Szabolcs’s discovery that Alison had incurred significant debt of which he was unaware. Szabolcs was charged with mischief and uttering death threats in relation to a domestic incident. The parties separated. Those charges were resolved by way of a peace bond.

[8] The parties reconciled on or about May 2018.

[9] Alison acknowledged to Szabolcs at the time, in writing, that a major area of tension in their marriage was her inability to keep her parents at bay.

[10] They separated on a final basis on or about March 10, 2019.

[11] Alison suggested, and Szabolcs agreed to, a 2-2-3-3 shared parenting regime.

[12] This court action was commenced on February 26, 2020.

[13] The two youngest children have always followed the shared parenting schedule.

[14] Isabella, the eldest, refused to spend any time with her mother from September 2019 through until April 2020. She once again followed the shared parenting schedule from April 2020 through July 2020. In July 2020, following an argument with Alison, Isabella ceased attending parenting time with her mother.

[15] Post-separation, Szabolcs exhibited a great deal of anger and resentment towards Alison and her parents.

[16] Szabolcs believes that Alison was untruthful with respect to her use of the family finances.

[17] He believes that her parents conspired against Szabolcs to the detriment of the financial health of the family.

[18] Post-separation, Alison jeopardized a joint investment property transaction by re-allocating funds needed for that transaction to her own use.

[19] Alison owned a piece of property that she received as a gift from her parents in 2008. She gave this back to her parents near the end of her marriage, allegedly without consideration. It was later sold by her parents for ~$135,000. Szabolcs believes this to be a sham.

[20] At the time of the first separation, Alison and her parents removed significant chattels and personal property from the matrimonial home without Szabolcs’s knowledge or permission while he was prohibited from attending. Szabolcs believes this act to be vindictive and wholly inappropriate. He believes the criminal charges were at least partly utilized to allow Alison to gain an upper had on the financial matters. This issue was not resolved before or during the period of reconciliation.

[21] After separation, Alison refused to negotiate directly with Szabolcs with respect to the property issues or with respect to any financial issues. She would ignore efforts by Szabolcs to deal with these issues efficiently and effectively, instead repeatedly directing him to limit communications to parental issues. She generally referred financial matters to her counsel or ignored them.

[22] This frustrated Szabolcs. Szabolcs felt emasculated and helpless. He saw the entirety of his efforts to build a successful financial base for his family being needlessly and maliciously depleted.

[23] There is ample evidence to suggest that Szabolcs’s viewpoint was not delusional or paranoid. He had valid reasons to reach these conclusions.

[24] His communication with Alison grew increasingly hostile. Many of his texts were rude, condescending, profane and mean. They were often unfocussed and were certainly unhelpful. His bitterness towards the Zingers was evident at every turn.

[25] The caused a nasty feedback loop. Szabolcs’ commnuications got worse. Alison retreated further.

[26] Isabella first stopped attending Alison’s home after she reported an incident between she and her maternal grandmother. After several months, she resumed her regular schedule with her mother but a few months later, in July 2020, stopped going after having an argument with her mother.

[27] Szabolcs was permissive of Isabella’s refusal to be with her mother. While stating that he supported and encouraged a full parental role for each parent, he did little initially to ensure that Isabella followed the schedule. He made it clear that he was not prepared to force or coerce his daughter into seeing her mother.

[28] Efforts were expended and orders were made for interventions during this litigation. Parents, and counsel, were not always on the same page as to exactly what was ordered or how best to implement the orders. The orders were not drafted with input from the potential service providers. This caused mass confusion as to what was to be done, who was to do it, and who was to pay for it. Each party blames the other for the lack of follow through on interventions for Isabella and the family.

[29] Isabella attended more than twenty counselling sessions with Lisa Allaby between November 2017 and May 2020. Isabella has a bond with her. Their interaction is now closed such that it is personal between counsellor and child and is not shared with the parents. Isabella speaks positively about Ms. Allaby and her efforts to help Isabella.

[30] Each parent wants to do what is necessary to have Isabella reintegrated with her mother in a healthy manner.

[31] Barbara Dyszuk authored a s.112 OCL report dated August 19, 2021. Her report concludes with recommendations that, inter alia, the children be placed into the primary care of Alison with Szabolcs to have parenting every Thursday overnight and alternate weekends from Friday to Monday morning.

[32] The OCL report outlines that Isabella states clearly that she loves her mother, but she does not want to go back to her mother’s.

[33] Overall, and despite the strife between the parents, all evidence confirms that the children are meeting all their milestones, are healthy, are academically sound, and are well behaved.

[34] The parents have not had any significant disagreements regarding parenting issues since the province’s response to Covid caused a disagreement about in home vs. in person schooling. The parents do not have significant differences in approach to major parenting issues.

Parenting: Discussion

[35] Isabella’s refusal to visit her mother is not in her best interests. Everyone involved in this matter agrees that everything should be done to re-integrate Isabella and her mother.

[36] Szabolcs has indicated he is fully onboard with supporting the relationship between mother and daughter. He seems to acknowledge, although late in the proceeding, that his role is not to tacitly or overtly support Isabella’s non-interaction but that he must be a proactive advocate for reinstatement of that relationship.

[37] The OCL report details the author’s concerns when children stop seeing a parent. This is not controversial. Children fare better in virtually every way when they have a healthy relationship with each parent.

[38] The question in this case is: “What framework will give Isabella and her parents the best chance for success?”

[39] Alison is not seeking an order placing Isabella with her to the exclusion of Szabolcs, as is seen in extreme alienation cases. The OCL does not recommend such a framework in this case.

[40] Szabolcs is not an alienator. He did not initiate a course of action meant to destabilize the relationship between mother and daughter. It was Isabella who initiated the separation based on her interpretation of her mother’s conduct. But Szabolcs, to Isabella’s detriment, did not push back sufficiently against Isabella.

[41] When Isabella first refused to see her mother, Szabolcs was supportive of reintegration and was instrumental in convincing Isabella to resume the regular schedule after a few weeks. He was not as interventionist when Isabella stopped going the second time. His perceived ability to do so was clouded by his emotions toward the Zinger family. The alleged concern for her safety was not justified based on the allegations raised by Isabella. The entire issue of Isabella’s safety was blown out of proportion. Cooler heads should have prevailed for the benefit of Isabella.

[42] But it cannot be concluded that Szabolcs is now actively or passively fostering Isabella’s continuing refusal to see Alison. Szabolcs’s stated dedication to reintegration of Isabella and Alison is credible.

[43] The OCL recommends that Isabella’s primary residence be with Alison. The regular schedule would include 10 overnights with Szabolcs in a 4-week period.

[44] There is no analysis in the OCL report, nor was there any evidence given by the author, as to the difference, from Isabella’s point of view, between the recommended schedule versus the shared parenting schedule in place since the separation.

[45] If there is an acknowledgment that Isabella will benefit from significant time with her father, why is 10 overnights in 4 weeks preferrable to 14 overnights in 4 weeks? How is the recommended schedule more likely to result in Isabella reintegrating with her mother? This is not explained.

[46] What is the plan to have Isabella honour whatever schedule is ordered? The OCL report recommendations are silent on this point.

[47] What is the benefit/detriment analysis of seeking an order that is contrary to Isabella’s expressed views and preferences? This is not addressed.

[48] There was a concern that Isabella was overly parentified in her relationship with her father, that she felt the need to protect him. Isn’t there a significant risk that ordering her to live with her mother primarily might backfire and cause her to dig in her heels more emphatically? This was not addressed.

[49] The best solution is the one that has the greatest odds of ending with Isabella having an equally strong relationship with each parent.

[50] The plan that makes the most sense is for the shared parenting regime to be re-established for Isabella. This will signal to Isabella that her parents are on equal footing. She will be given every indication that she is free to have a natural relationship with her mother and that she is expected to follow the ordered schedule.

[51] She should have continued access to Lisa Allaby as a counsellor in a confidential capacity.

[52] The parents will cooperate to retain reintegration professionals as required.

[53] The very strong expectation is that the parents will be satisfied that each of them is doing everything within their power to get Isabella back on the shared schedule.

[54] Alison asserts that this case involves serious and significant incidents of family violence which should disqualify Szabolcs as an equal parent.

[55] During the marriage there was no pattern of violence. As the marriage was falling apart there were isolated incidents between the parties. Szabolcs put a hole in a wall upon discovery of Alison’s secret financial mismanagement. There was also a physical altercation between Szabolcs and Alison over possession of a cell phone. These were isolated incidents not indicative of expected future interactions between the parties.

[56] Szabolcs’s communication with Alison since separation has been problematic. Szabolcs showed an inability to control his language in written communication, to the point where Alison felt intimidated and overwhelmed by the force of his words.

[57] During this trial, it became evident that Szabolcs was completely devastated by the separation and the actions that took place thereafter. He felt that he was ganged up upon by the Zingers, he felt that he was losing his family and his financial stability, and he felt that no one was listening to his side of the story, particularly the courts.

[58] It is clear that the culmination of this trial represents a very significant milestone for Szabolcs. He has finally had a chance to tell his side of the story in depth, on an equal footing with Alison. He has been heard.

[59] It is expected that this venting and steam-letting by the parties will lead to calmer future relations between them. The trial represents the opportunity to hit the “re-set” button and both parties gave strong indication during their evidence and during the trial that they are prepared to do so.

[60] This in no way excuses the behaviour of Szabolcs in his communications. He acknowledged the impropriety of his conduct and showed credible, genuine remorse.

[61] This was not coercive or controlling behaviour by Szabolcs. It was angry, reactive behaviour. He neither controlled nor coerced Alison by virtue of his poor communications.

[62] There was no credible threat to Alison’s safety. Alison was always aware of Szabolcs’s lack of authority or power over her as is evidenced by her ability to repeatedly ignore him. Szabolcs’s written tirades were from a position of weakness, not strength or power. He was very annoying, very rude, very inappropriate. But not violent.

[63] Thus, this pattern of behaviour, when looking at section 16 (3) and (4) of the Divorce Act, does not constitute a form of family violence sufficient to justify the denial of parenting or decision-making authority to Szabolcs.

[64] The behaviour is situational, temporally connected to the unresolved matrimonial matters. Behaviour during the marriage predicts complete cessation of hostilities upon the completion of this trial.

[65] The analysis regarding Isabella also applies to Adam and Emma. There is no basis to change their status quo, which is a shared parenting schedule with joint decision making for each parent.

[66] While they wish their parents would get along better, they each have adjusted to the separation, enjoy time with each parent, and are thriving.

[67] The success of the parents in maintaining a healthy shared parenting regime for Adam and Emma bodes well for Isabella’s future. Szabolcs and Alison have supported each other’s role, cooperated, and effectively managed the vast majority of issues that have arisen post-separation regarding Adam and Emma.

[68] The best interests of all three children are met by a shared parenting framework with joint decision making, just as was negotiated by the parents immediately post-separation. Isabella will be encouraged to follow the ordered schedule immediately, but the parties, mindful that force is not usually productive, will take whatever measures are available to assist Isabella and the family towards that goal.

[69] This is predicated on the commitment of Szabolcs to act in good faith regarding Isabella’s reintegration with Alison. It is appropriate to build in a mechanism for the court to revisit the issue if the parties are not mutually content with the efforts expended by the other to foster reintegration.

Issue 2: Restraining Order

[70] Alison seeks a restraining order against Szabolcs.

[71] As discussed above, there is no reasonable expectation that the conduct complained of, the inappropriate communication, will persist given the clear censure by the court and given the resolution of the matrimonial issues.

[72] There are no reasonable grounds for Alison to fear for her safety or the safety of the children.

[73] The claim for a restraining order is dismissed.

Issue 3: Child Support

[74] Neither party has paid child support to the other since the date of separation.

[75] Szabolcs seeks significant retroactive support based on shared parenting and imputed income to Alison.

[76] Alison does not seek retroactive support, which she says would be owing to her if there is no income imputed to her.

Child support: Alison’s income

[77] Alison is a CPA. She earned over $100,000 in 2016 and 2017 but her income decreased significantly in 2018 and 2019.

[78] In 2020 she obtained employment at the City of Waterloo which paid her just over $100,000 again.

[79] She was terminated by the City of Waterloo in February of 2021.

[80] By the time of trial, she had obtained employment paying her at least $70,000 annually. This is based on a strict extrapolation of the only two paystubs she had received at the time. Only the lower of the two paystubs was produced.

[81] Alison clearly was unhappy in her employment as of the date of separation. This was due to a combination of underperformance, dissatisfaction of the work/life balance she was experiencing, and the stresses associated with the separation.

[82] This unhappiness no doubt contributed to her employment instability and termination from the City of Waterloo.

[83] By the date of the trial, she had realized she was not entitled to simply turn her back on her profession given her obligation to the children. Despite previous dreams of starting a textile business or some other artistic endeavour, she once again found lucrative employment in the accounting field. This is as it should be.

[84] It is reasonable for her to take employment in her field at a lesser level than she had previously worked. She was not performing adequately for the City of Waterloo, and she cannot be expected to seek a job with similar high-level demands. Her current employment level is reasonable.

[85] Her 2023 income is highly likely to be more than $70,000 based on the nature of her contract and the way she described how she is paid. It appears that $70,000 might be the very lowest amount she might expect to earn this year.

[86] Szabolcs has not discharged his onus to show a prima facie case of underemployment. There was no credible evidence that Alison deliberately decreased her income.

[87] This was a high conflict case from the date of separation and the effect of that conflict upon Alison’s ability to perform her employment duties was well outlined by her.

[88] While she briefly contemplated some career choices that would have been problematic from a child support point of view, she re-established her professional career in a manner that has not been shown to be unreasonable.

[89] Her refusal to seek child support for the months when she was earning much less than Szabolcs reinforces the notion that she was trying to make the best of a bad situation. She is not trying to take advantage of her decreased income; she only seeks not to have unrealistic income imputed to her while she was struggling.

[90] This framework meshes well with the overall goal of this family which is to re-establish an equal footing as parents.

[91] To further this goal, the parties should be deemed to have equal incomes for 2023, resulting in no support payable in a shared parenting regime. After 2023 incomes are known, they can compare and determine what offset support might be owing by one to the other starting afresh in 2024.

[92] It is appropriate to set Alison’s income for support purposes for 2023 at $92,000, equal to Szabolcs’s 2022 income. Again, the actual incomes for the parties in 2023 will be used to set the offset child support owing as of January 2024.

[93] Given the non-income based financial resources available to Alison, there is no concern that the lack of any offset child support for 2023 will cause hardship for the children.

[94] In summary, there is no retroactive support owing between the parents. The ongoing support as of July 1, 2023, is set at nil based on a shared parenting regime with each parent having deemed income of $92,000. The offset amount shall be recalculated once 2023 final incomes are known and that support, if any, will commence January 1, 2024.

[95] Note that this shared parenting support order will prevail whether or not Isabella quickly re-integrates with her mother and resumes spending time with her. The legal framework is an equal sharing of time and that is the basis of the support order.

Issue 4: Section 7 expenses

[96] By the end of closing submissions, the parties had narrowed the issue of outstanding section 7 expenses down to a net claim by Alison of $3,125. Szabolcs argues there was no consultation regarding these specific expenses and that he did not provide advance consent to the expense. He, therefore, denies the obligation to pay any proportion of the expenses.

[97] The majority of the disputed expenses relate to before and after school care for the children. All of the disputed expenses are reasonable child support items and, without doubt, would have been agreed upon had the parents not been at loggerheads on other issues. It is reasonable that Szabolcs should contribute to these expenses despite not having technically agreed to them at the time.

[98] In the future, all section 7 expenses must be consented to in advance, consent not to be unreasonably withheld, if a parent is to expect reimbursement from the other.

Issue 5: Property

[99] The parties were able to provide a comprehensive joint net family property statement at the conclusion of the trial. There are only two distinct issues that require determination.

Property: Value of Real Estate in 2660461 Ontario Inc.

[100] This company is 1/3 owned by Szabolcs. It owns two investment properties.

[101] Szabolcs produced an appraised the properties by a certified real estate appraisal at $752,000. Alison has an opinion of value for the properties at $812,500. Neither author was called as a witness.

[102] In absence of any other evidence, the appraisal trumps the opinion of value.

[103] The value of the investment properties is $752,000 for NFP purposes.

Property: Debt owed to Business Partners

[104] Szabolcs and Alison borrowed money from friends known as Vaughn and Kim. The money was used to upgrade the condominiums. The transaction was between the parties in their personal capacity. As of the date of separation, the amount was still fully outstanding.

[105] Alison argues this is a corporate debt as it relates to the properties owned by the corporation. This is not correct. There is no evidence of anyone transferring this debt to the corporation at any time. It was a personal debt at the date of separation. The fact that the properties were rolled into a corporate structure after the money was borrowed does not affect the nature of the personal debt. The money is still owed by Szabolcs and Alison to Kim and Vaughn.

[106] On both outstanding equalization issues, Szabolcs’s NFP calculation is accepted.

[107] The result is that Szabolcs owes Alison an equalization payment of $60,047. The parties agree that there is a post-separation adjustment owing by Alison to Szabolcs of $10,587. Therefore, the net amount payable by Szabolcs to Alison is $49,460.

Issue 7: Unequal Division of NFP – s. 5(6) FLA

[108] Szabolcs asserts that the equal division of NFP is unconscionable. He alleges the following in support of his assertion:

a. Alison received a gift of a vacant lot from her parents in 2008. In the months leading up to the first separation, in 2017, when the family could really have used that capital to assist with debts, she unilaterally and surreptitiously transferred it back to her parents for no consideration. Three years later the parents sold the property for $135,000. b. Alison convinced him to pay off her sole credit card in March of 2017 in the amount of $12,000. c. Alison had Szabolcs arrested in order to trigger a separation. While he was away from the matrimonial home, Alison and her parents arranged to enter the home and remove many significant chattels and fixtures without Szabolcs’s knowledge or consent. d. On July 5, 2017, Alison withdrew $41,000 from a joint line of credit and gave it to her parents. The encroachment upon the line of credit caused Szabolcs hardship in dealing with the investment properties now owned by the numbered company. She never returned that money. Her parents have been returning that money to Alison alone in bits and pieces as she needs it. e. Alison’s parents have purchased a house for her and are renting it to her at far less than market rate. Alison has mentioned that she will receive title to this property after this litigation clears up. Alison’s parents have financially interfered in the separation using, in part, funds from the lot that Alison gifted to them for no reason. f. After the parties reconciled in May of 2018, Szabolcs received an inheritance of $90,000. He used up to half of that for family purposes prior to the final separation.

[109] Szabolcs asks that the court find that the effect of the above alleged conduct is sufficient to authorize an unequal division of property under, primarily, s. 5(6)(h) of the FLA.

[110] The largest problem with that argument is that Szabolcs reconciled with Alison after he was fully aware of all the alleged terrible conduct. By May of 2018 he knew everything that had been done to him by the Zingers. They had been separate and apart for almost a year.

[111] Yet, the conduct that he was subject to did not prevent him from reconciliation. It was not sufficiently shocking to his conscience to prevent an attempt to set aside differences and to continue as parents and partners.

[112] If the conduct was tolerable to Szabolcs in terms of continuing his relationship with Alison, how can it now be deemed so shocking to the conscience of the court that the equalization payment owing should be adjusted?

[113] Even if, however, Szabolcs had not reconciled with Alison, this conduct does not reach the level of unconscionability. This is simply because the net effect of the alleged transgressions is not large with respect to the equalization payment owing. The vacant property would’ve been excluded. The debts Szabolcs incurred paying off Alison’s debts reduced his NFP at separation. Alison’s financial conduct did not drastically change the ultimate equalization payment owing.

[114] Section 5(6) is not engaged.

[115] It is worth noting, as much of Szabolcs’s pain since separation has stemmed from his belief that he has been treated horribly and that he has not been heard, that there is much evidence to support Szabolcs’s allegations.

[116] Alison, in conjunction with her parents, behaved very badly towards Szabolcs throughout the separation and after. He was treated with no respect or sympathy. His pleas to deal cooperatively or at least efficiently with the financial issues were largely ignored. Alison proceeded in the matter that suited her with no regard for the consequences to the father of her children.

[117] While there was nothing legally or procedurally improper with the Zinger’s collective behaviour, this behaviour contributed to the “high conflict” nature of this prolonged battle.

[118] Szabolcs’s reaction to being marginalized was exactly the opposite of what was needed. His negative conduct escalated, which in turn caused less communication between camps. Thus, we end in a three-week trial many years post-separation.

[119] At the conclusion of the trial, however, the parties each indicated a heartfelt desire to move forward positively with an eye on the future of their children. There is no reason why this cannot be so. They are each very loving parents with much to offer their children. When apart from each other they are productive, amiable people with strong community ties and healthy relationships. The worst is behind this family if they can let it happen.

Orders

[120] The parties shall share decision making authority for the children Isabella, Emma and Adam.

[121] The children shall reside with each parent on an equal basis. The schedule shall be a 2-2-3-3 schedule unless otherwise agreed upon in writing. The parents shall have an equal share of all regular holiday periods which shall override the regular schedule.

[122] The parents shall endeavour to make Leslie Allaby available to Isabella as a personal counsellor.

[123] The parents shall take all reasonable steps required to enlist professionals to assist Isabella to reinstate her parenting time with Alison.

[124] In the event there is a disagreement over what reintegration steps are required or reasonable, the matter may be brought before me on short notice by coordinating same through the Simcoe and Kitchener Trial Coordinators.

[125] The incomes of the parents are deemed to be $92,000 each for 2023. There shall be no child support payable from one parent to the other. The parents shall compare actual 2023 final incomes as soon as available and child support may be adjusted, if necessary, as of January 1, 2024.

[126] Section 7 expenses shall be shared in proportion to incomes, such expenses to be consented to in advance, such consent not to be unreasonably withheld.

[127] Szabolcs shall pay Alison the amount of $3,125 to Alison is satisfaction of all past section 7 expenses.

[128] All claims for retroactive child support are dismissed.

[129] Alison’s claim for a restraining order regarding Szabolcs is dismissed.

[130] Szabolcs shall pay Alison the sum of $49,460 in full satisfaction of all property claims.

[131] On consent, the certificate of pending litigation on the property municipally known as 120 Fletcher Circle shall be discharged.

Costs

[132] Success has been very much divided. Neither parties’ litigation conduct would heighten or diminish their respective costs entitlement or obligation. If the parties cannot resolve the issue of costs, submissions of no more than 3 pages, plus Offers to Settle, plus Bills of Costs may be submitted to me through the trial coordinator. The Applicant’s submissions to be received by July 21 and the Respondent’s by August 12. If none are received, costs will be deemed to be resolved.

Justice R. F. MacLeod

Released: July 4, 2023