Court File and Parties

COURT FILE NO.: FS-21-27315 DATE: 20230926 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: NICOLE HALL, Applicant AND: PAUL GALBRAITH, Respondent

BEFORE: W.D. Black J.

COUNSEL: Katherine Cash, for the Applicant Cassie Devenyi and Adam L. Keeping, for the Respondent

HEARD: September 21, 2023

Endorsement

Overview

[1] This is a troubling matter, in which three generations of a family are embroiled in emotionally charged fall-out from a failed marriage.

[2] The respondent father, Mr. Galbraith seeks an urgent temporary Order that the two children of the marriage, a son who is 14 and a daughter who is 12, reside primarily with him, and that the applicant mother, Ms. Hall, have limited parenting time with them, conditional on receiving treatment for alleged mental health and addiction issues.

[3] The participation of the third generation in this immediate dispute comes in the form of an affidavit from Ms. Hall’s mother, filed by Mr. Galbraith, expressing support for Mr. Galbraith’s motion and endorsing the need for Ms. Hall to receive treatment.

[4] As always, resolving this matter involves placing the interests of the children first and foremost.

[5] For the reasons that follow, I have decided that in the near term the parenting arrangements will not change, and that the children will continue to reside on a regular basis with Ms. Hall at her new residence in Unionville, and to attend school in that area.

Respondent’s Concerns re Ms. Hall’s Mental Health and re Parenting Time

[6] I have done so, however, on the basis and with the proviso that there will be immediate assessments undertaken of Ms. Hall and her parenting, and of the children’s bests interests and wishes.

[7] There is considerable concerning evidence about Ms. Hall’s mental health and well‑being. On the other hand, there is evidence suggesting that her condition may not be as acute as what Mr. Galbraith’s materials portray.

[8] Overall on the record before me there is insufficient evidence to prove, even on a balance of probabilities, that Ms. Hall’s difficulties rise to the level where she is a danger to herself or others or, to focus on what matters most here, to demonstrate that she is unable to parent her children safely.

[9] I find nonetheless that there is an urgent need to assess those issues, and to ensure that matters proceed in a fashion that benefits and protects the children.

[10] I am also providing for substantial parenting time for Mr. Galbraith with the children which, given their attendance at school in the area where their mother lives, I expect may have to be largely on weekends. That said, I am advised that Mr. Galbraith is not employed at the moment, and so if he is currently available for mid-week parenting time with the children, I support that additional parenting time as well.

[11] The events leading up to this motion reflect an extreme example of the kind of hyper‑emotional warfare too often characterizing family disputes, and an abiding failure to keep the children out of the fray.

[12] Rather, the children have been brought into the turmoil, seemingly directly and intentionally, and have had to shoulder much of the fallout. Among other necessary near-term outcomes, this must stop.

Date of Marriage, Separation and Children’s Births

[13] The parties were married on December 20, 2008. They separated on a final basis on or about August 13, 2019. Their son was born on June 3, 2009, and their daughter on January 20, 2011.

[14] Mr. Galbraith has two other children, aged 18 and 20, from a previous marriage.

Financial Issues Contributing to Separation, and Exacerbated Since Then

[15] It is clear that, in addition to other factors, financial issues arising during the relationship caused increasing strain, and eventually fracture.

[16] Since the separation, these financial pressures have played out in particular relative to support claims, in turn related in part to choices of schools for the children.

Mr. Galbraith’s Relocation to New York

[17] The financial imperatives also led to Mr. Galbraith relocating in the last few years to New York, in order to maintain relatively lucrative employment with his erstwhile employer, HSBC.

[18] Specifically, there is evidence that HSBC has recently curtailed its Canadian operations, and terminated or relocated a number of highly paid executives. Mr. Galbraith, in that context, was given the choice of accepting a termination package or relocating to New York City to take a position with comparable remuneration to the position he had held in Canada.

[19] While this was clearly a difficult decision (as Justice Akazaki colorfully described in his decision in an earlier motion in this matter in April of 2023), Mr. Galbraith opted for the New York position. To that end, he relocated to New York in May of 2020.

[20] This meant that he could continue to afford to make substantial support payments – for much of the relevant period $10,000.00 per month and at their height $15,000.00 per month – but it also meant that for the last three years, until he lost the New York position and returned to Toronto at the end of June of 2023, his parenting time has been necessarily limited.

[21] At around the time of his departure to New York, Mr. Galbraith purchased a condominium on Hillsdale Avenue in Toronto to facilitate parenting time with the children during his regular visits to Toronto, and maintained contact with the children otherwise, but as a practical matter these arrangements meant that the children’s de facto primary residence for the last three years was with Ms. Hall.

Residence and Schools of Children Since Separation

[22] Following the parties’ separation Ms. Hall began a relationship with one Nick di Pede, who lived in Vaughn. Mr. di Pede is described in the materials as wealthy. In mid-2021 Ms. Hall and the children apparently moved into Mr. di Pede’s large home in Vaughan.

[23] It appears that the parties’ son attended school in the area where Mr. di Pede’s home was situate. Their daughter was enrolled, it seems since 2020, in Holy Trinity School, (HTS) an expensive private school in Toronto. Ms. Hall, who is said to come from a wealthy family, had attended HTS herself. Mr. Galbraith alleges that Ms. Hall enrolled their daughter at HTS without his consent, and that the parties could not afford the annual tuition of approximately $40,000.00.

[24] Indeed, while it appears that the son, who is reported to have certain learning difficulties, has only ever attended public school, the evidence shows that Ms. Hall was advocating at various points for the son too, to be enrolled in one or another expensive private school (there was discussion and consideration of the son also being enrolled at HTS, or alternatively at St. Michael’s College School in Toronto).

[25] In the same decision referred to above in April of this year, Akazaki J. found Ms. Hall’s purported insistence that the children attend expensive private schools as revealing “poor decision‑making on her part” and that the wish to enroll one or both of her children at HTS was more about “reflecting prestige” on Ms. Hall than about the best interests of the children.

Breakdown of Ms. Hall’s Post-Separation Relationship, and Events Since Then

[26] Ms. Hall’s relationship with Mr. di Pede by all accounts ultimately proved toxic. Her departure from that relationship involved allegations of violence, and palpable acrimony.

[27] It seems that once that relationship was at an end, Ms. Hall moved around with the children from residence to residence, not settling in any one place for more than a few months.

[28] While she was doing so, there were ongoing communications, often terse and even hostile, between the parties relative to the schooling issues described briefly above, and more particularly about financial support issues.

[29] During this same timeframe, it is clear that Ms. Hall had a significant falling out with her own parents and siblings, and that those family members, together with Mr. Galbraith, developed worries about Ms. Hall’s mental health.

Concerns Expressed by Ms. Hall’s Family About Her Mental Health

[30] More particularly, in late March of 2023, two of Ms. Hall’s siblings apparently expressed to Ms. Hall’s parents a concern that Ms. Hall was going to commit suicide.

[31] As laid out in the affidavit of Ms. Hall’s mother Berendina, her parents returned immediately from vacation in Mexico, while Ms. Hall’s siblings contacted CAMH in Toronto to determine the best course of action.

[32] Berendina deposes that the family was advised to have Ms. Hall “formed” (i.e. admitted involuntarily to a mental health facility pursuant to a form under the Mental Health Act).

[33] The family did so, making arrangements for the children to be looked after and arranging for Ms. Hall to be apprehended and taken to York Central Hospital on April 1, 2023.

Results of Assessment of Ms. Hall at the York Central Hospital, and Ms. Hall’s Subsequent Meetings with a Psychotherapist

[34] Importantly, in my view, Ms. Hall was assessed over the course of the next 27 hours, and then released on the basis, as was reported to Berendina by (it appears) a staff psychiatrist at York Central Hospital, that Ms. Hall was “a strong woman, willful and not at risk”.

[35] Despite this outcome Ms. Hall’s mother and one or more of Ms. Hall’s siblings continued to express concerns about Ms. Hall’s mental health, and brought a psychotherapist to a family meeting on May 12, 2023. Berendina deposes that although Ms. Hall expressed a willingness at that meeting to work with the psychotherapist, she (Berendina) did not have any information about what happened with the proposed psychotherapy.

[36] Ms. Hall’s evidence is that she did have four sessions of psychotherapy with the person introduced by her family, that she herself paid for these sessions, and that in her last discussion with the psychotherapist he told her he would be speaking with her family about “what he saw as a confusing disconnect” (presumably between Ms. Hall’s condition and her family’s perception of that condition).

Respondent’s Evidence Does Not Meet “Danger” Threshold

[37] I find that the respondent’s evidence falls short of demonstrating serious mental illness on the part of Ms. Hall, or that Ms. Hall’s condition presents a danger to herself or others (and most importantly here, to her children).

[38] Ms. Hall’s parents’ and siblings’ concerns about her well-being and alleged risk of suicide, while important and not to be lightly disregarded, appear largely to be based on their collective perception of Ms. Hall’s emotional state, and on certain circumstantial evidence leading them to believe that Ms. Hall had formed an intention to commit suicide.

[39] Fortunately, on the latter score, when trained professionals assessed Ms. Hall for potential ongoing detention under the Mental Health Act, in turn based on a determination as to whether or not Ms. Hall posed a risk to herself or others, the conclusion, as reported to Ms. Hall’s mother and consistent with a release of Ms. Hall from involuntary detention after an initial assessment, was that she did not.

[40] I infer as well that the psychotherapist whom Ms. Hall saw on four occasions at the behest of her family had no significant concerns that Ms. Hall was a danger to herself or others. If that psychotherapist had such concerns, he would have been obliged himself to seek further detention of Ms. Hall under the Mental Health Act.

[41] Ms. Hall herself deposes that she has been emotionally wrought by the ongoing welter of acrimonious court proceedings, and exhausted as well by full-time care of her two children “with little to no help for the last four years”.

[42] She emphatically denies, however, having the serious mental health or addiction issues alleged by the respondent.

[43] Allegations of such mental health problems and addiction are serious allegations to make.

[44] I acknowledge that the fact that Ms. Hall’s own mother has provided an affidavit on the side of the respondent, echoing the respondent’s allegations about Ms. Hall’s mental state, is unusual and must be taken seriously.

Nonetheless, Concerns re Ms. Hall’s Behaviour and Need for s.30 Assessment

[45] I am also concerned about Ms. Hall’s erratic behaviour evidenced by wildly inappropriate texts to the respondent, and Ms. Hall’s ill-advised and wholly unacceptable propensity to involve her children, and in particular her daughter, in the dispute with the respondent. There is heart‑wrenching evidence in the record, in the form of videos recorded by the parties’ daughter, and texts that the daughter composed and sent blaming the respondent (and separately Ms. Hall’s mother) for Ms. Hall’s financial and emotional plight.

[46] This evidence is sufficiently concerning to cause me to order the expeditious s.30 assessments I am directing in this case. It is not sufficient for me to draw an informed conclusion that Ms. Hall is a danger or requires immediate treatment. Again, given the seriousness of those allegations I am not prepared to infer those conclusions without clear and compelling evidence from a trained professional.

Denial of Mr. Galbraith’s Request for Immediate Primary Custody of Children

[47] Nor do I think it appropriate to order, as Mr. Galbraith urges, that he be given immediate primary custody of the children.

[48] First, the fundamental basis for his request is the allegation about Ms. Hall’s mental health and addiction, which I have found to be lacking in the evidence.

[49] In addition, it remains the case that for the last few years, while Mr. Galbraith has lived primarily in New York, Ms. Hall has been the person primarily parenting the children.

[50] As I note, the children and in particular the daughter have been inappropriately dragged into the litigation fray, but there is otherwise no evidence suggesting that the children are unwell. To the contrary, the evidence touching on their well-being appears to suggest that for the most part they are thriving.

Children to Continue Attending (New) Schools in their Mother’s Neighbourhood

[51] Having moved with their mother, with whom they have primarily lived for the last few years, to her new home in Unionville, both children are now enrolled and attending at schools in the area.

[52] It is worth noting that whatever schools the children would have attended this school year would have been new to them.

[53] That is because the son is transitioning from middle school to high school, and the daughter is transitioning from private school back to public school.

[54] While these transitions can themselves be jarring, particularly for children caught up in an acrimonious family law fight, it would be even more jarring, in my view, now to uproot them from their new schools in their mother’s neighborhood to other new schools in their father’s neighborhood. This is particularly so given that it would also entail going from living largely with their mother, as they have for the last several years, to living largely with their father.

[55] What is in these children’s best interests at this stage, I believe, is at least a modicum of stability, and I find that that is best achieved, at least for now, by letting them live primarily with their mother and letting them settle into their new schools.

[56] As noted throughout these reasons, however, there is enough unsettling evidence before me, and sufficient serious allegations, to cause me to require an urgent s.30 assessment of Ms. Hall’s ability to parent these children and of the health, well-being and wishes of the children.

[57] Ultimately what is in their best interests will guide the court’s determinations of primary residence, decision-making and parenting, and to that end, I am ordering the s.30 assessment.

Summary of Conclusions and Orders

[58] In conclusion, I order:

(a) That for the time being the children’s primary residence will be with Ms. Hall in her new home in Unionville;

(b) That the children will continue to attend at their new schools in that area;

(c) That Mr. Galbraith will have parenting time with the children every other weekend (picking them up after school on Fridays and delivering them back to their mother’s house on Sunday evening by not later than 7:00 p.m.) and mid-week parenting time with the children each week on an evening to be agreed (depending on the convenience of the children and their parents) from pick-up after school until delivery to their mother’s house by 9:00 p.m. In addition, Mr. Galbraith shall have telephone or videoconference time with the children for a half hour (total between the two children) at a time to be arranged each evening when they are not with him and once on the weekends when they are not with him;

(d) Neither parent is to involve the children in any further discussions about the status of these proceedings, let alone to encourage or allow either child to participate in communications about this case; and,

(e) That there is to be an urgent s.30 assessment of Ms. Hall’s ability to parent and of the best interests, well-being and wishes of the children, to be provided to both parties through their counsel, and on which either party may rely in any further attendances in this Court.

[59] I do not see a bill of costs uploaded to Caselines by either party. Should either party seek costs of this motion they may contact the family trial office and request the right to file submissions for my determination.

W.D Black J. Date: September 26, 2023