ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-15-FS-49853

DATE: 2023/01/25

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

AUTUMN MARIE FERNANDES

Applicant

– and –

RICHARD DOMNIC FERNANDES

Respondent

Self-Represented

Self-Represented

HEARD: April 11 – 14; April 19 – 22; April

25; April 27 – 28; September 6 – 9, 2022

BREITHAUPT SMITH, J.

REASONS FOR JUDGMENT

1The Applicant, Autumn Marie Fernandes (“Mother”) and the Respondent, Richard Domnic Fernandes (“Father”), have been litigating this matter for more than seven years. Their daughter, Reilly, was 8 when the Application was commenced in February of 2015 and is now 16. Their son, Jordan, was only 6 and is now 14 – this court proceeding has been ongoing for more than half of his life. Closure and stability are desperately needed.

Part I: Procedural Fairness at Trial

2Before embarking upon the reasons for my substantive conclusions on the issues raised at this trial, it is imperative that I review in detail the scheduling concessions provided to Father. As both parties are self-representing and thus do not have the benefit of counsel to advise them as to the nuances of procedural fairness, such events could be perceived as favouring Father. This

section is intended to dispel any concern that either party was favoured over the other in the course of the trial.

Chronology of Trial Proceeding

3The matter was set down for trial by Justice J. Walters from the Trial Management Conference held on August 27, 2021. It was scheduled for the September 2022 sittings having Trial Scheduling Court on August 30, 2021.

4At Trial Scheduling Court on August 30, 2021, Justice L. Madsen noted that the Trial Scheduling Endorsement Form indicated a range of between ten and twenty days required for the trial, on the basis that Father indicated an intention to call thirty-three witnesses. Her Honour ordered the trial to proceed for fourteen days during the sittings commencing September 7, 2021 and confirmed the procedure should a party request that the matter be considered for designation as a “Long Trial” (i.e. being fifteen days or more in duration).

5A Settlement Conference held in early September was not conclusive, and the matter came before Justice Madsen again on September 16, 2021 for clarification as Father continued to seek a Long Trial designation but had not undertaken the procedure to do so at that time. Her Honour set out, in detail, the process for making the request for the designation from the Regional Senior Justice’s (“RSJ”) office. At that time, the next sittings of the Long Trial Team commenced October 4, 2021.

6Shortly thereafter, Father submitted his formal request for a Long Trial designation. That request was declined by RSJ Sweeny on October 14, 2021. His Honour concluded the trial should take less than fifteen days and set it to the first sittings of 2022, having Trial Scheduling Court on January 24, 2022. His Honour further marked the trial peremptory upon Father.

7At Trial Scheduling Court on January 24, 2022, Justice Madsen denied Father’s request to adjourn the trial to the April 2022 sittings.

8As the January/February 2022 sittings approached, it became apparent that the trial would not be reached. Therefore, Justice Walters undertook two further full-day settlement conferences,

without result. Her Honour scheduled the matter for the April sittings having Trial Scheduling Court on April 4, 2022.

9On Monday, April 4, 2022, Justice D. J. Gordon set the trial for ten days’ duration and anticipated a further adjournment request from Father. It is unclear whether Father was in attendance on that date.

10Later that week, the Trial Co-ordination Office called the matter to trial commencing Monday, April 11, 2022. The three-week sittings comprised a total of thirteen days.¹ I was assigned as the Trial Judge.

11When the trial was called, two pretrial motions were before the Court. Mother had served and filed motion materials in early March seeking to strike Father’s Answer and proceed on an uncontested basis due to Father’s alleged non-compliance with prior Orders. On April 8, 2022, Father served and filed a Notice of Motion seeking an adjournment of the trial. I heard both motions on April 11, 2022. I declined Father’s adjournment request. I did not strike Father’s Answer, but instead prepared a Trial Plan which allowed for eleven days of evidence; five days per party with one additional day allocated to the Participant Experts.

12During the discussions on April 11, 2022, Father asked what would happen if he chose not to participate, and I confirmed that the trial would proceed.

13As my availability during the April sittings originally only covered the eight days between April 11 – 14 and April 19 – 22, 2022, arrangements were made by the Regional Senior Manager and the Office of the RSJ, working with the Kitchener Trial Co-ordination Office, to change my schedule so that I would be able to complete the trial during the week of April 25 – 29.

14As part of the Trial Plan on April 11, 2022, I confirmed that:

a. Each party would be limited to two days for his or her evidence in chief, and each would be cross-examined for one day.

b. Each party would have two further days to call up to five witnesses as he or she should choose, with Father to provide a typed list of his witnesses, inclusive of a brief notation regarding their general anticipated evidence, by Thursday, April 14, 2022.

c. I would not permit Father to call the children (then aged 15 and 13) as witnesses.

d. The Report of Clinician Ms. Barbara Dyszuk, appointed by the Office of the Children’s Lawyer, was admitted into evidence as filed on the basis that, statutorily, she was the Court’s witness. Either party was free to call her to testify. As of April 11, 2022, both parties said that they did not intend to call her as a witness.

e. The evidence of privately-retained legal consultant to the children, Ms. Phaedra Klodner, would be received by means of Affidavit or in person, depending upon Ms. Klodner’s preference.

f. Either party could call family physician Dr. Chase Reaume as witness, and if called his evidence would not count toward the limitation of five witnesses.

g. Father could call teacher Madame Erin St. Denis, and if called her evidence would not count toward his limitation of five witnesses.

15We began to hear evidence on Tuesday, April 12, 2022. Absent intervening circumstances, it would have proceeded for eleven business days and concluded on Thursday, April 27, 2022. On April 12th, Father asked if he could call additional witnesses if one of his five witnesses was not available to attend on the dates allocated to their evidence (i.e. April 28 and 29). I confirmed that he could replace any witness unable to attend with any alternate witness already listed on the Trial Scheduling Endorsement Form, with the total number of witnesses continuing to be five.

16On Wednesday, April 13, 2022 I allowed the trial to be stood down on Tuesday, April 26, 2022 at Mr. Fernandes’ request, as he could not rearrange his employment obligations for that date.

17It became clear that the evidence of Jordan’s counsellor, Ms. Jerilyn Hurwitz, would be required. As Mother intended to call her and had only four witnesses planned, she was added to be called on the day allocated to Participant Experts.

18On Thursday, April 14, 2022 we again wrestled with witness organization. Mother’s evidentiary case was to conclude on Wednesday, April 20, 2022. Thursday, April 21, 2022 was allocated to the Participant Expert witnesses. At that point, Father was proposing to call three Participant Expert witnesses in addition to his allotment of five witnesses plus Ms. Dyszuk and Dr. Reaume. I ruled that, once Mother’s Participant Expert (Ms. Hurwitz) and Ms. Klodner had completed their evidence by the morning recess on April 21st, he could use the balance of that day to call whichever Participant Experts he chose but that no further trial time would be allotted to anyone not reached by him on that day.

19On Tuesday, April 19, 2022, Father asked to call additional witnesses, beyond the permitted five, if he did not use the entirety of the three days set aside for his own evidence (two days in chief and one in cross-examination). That request was denied.

20On Thursday, April 21, 2022, five Participant Experts testified: Jordan’s counsellor, Ms. Jerilyn Hurwitz; privately-retained legal consultant to the children Ms. Phaedra Klodner; OCL Clinician Ms. Barbara Dyszuk; family physician Dr. Chase Reaume; and Jordan’s teacher Mr. Shawn Zarudny.

21Father’s testimony in chief was scheduled to commence on Friday, April 22, 2022.

22On Friday, April 22, 2022, Father wrote to the Court advising that he had fallen ill with the stomach flu and was unable to attend. The trial was adjourned to April 25, 2022 at 10:00 a.m.

23On Monday, April 25, 2022, Father wrote to the Court saying that he was “not available today for the trial at all” and that he would “try to be available for Wednesday at 10am.” (Note that the day had already been exempted on Tuesday, April 26.) I adjourned the trial to Wednesday, April 27 at 10:00 a.m., confirming that the trial would proceed without his involvement, if necessary, and encouraging his attendance. I wrote:

4I would confirm that at the outset of this trial, I advised Mr. Fernandes (in response to a question from him) that the trial would continue in his absence if he chose not to participate. Thereafter, he has participated fully throughout Ms. Fernandes’ portion of the case and in dealing with the

evidence of the Participant Experts. He has remained composed and careful in his approach and has consistently accepted the assistance and direction of the Court. Overall, he has represented himself very well thus far. I am hopeful that, upon reading this Endorsement, Mr. Fernandes will continue to participate.

24On Wednesday, April 27, 2022 Father entered his evidence in chief in written form, and asked to adjourn to the next day for his cross-examination to start. Mother objected and stated that she was concerned he would not attend. As of that date, three days of evidence remained (being one for Father’s cross-examination and two for his supporting witnesses), and so a further day was arranged to complete the trial on Monday, May 9, 2022. This again involved collaboration between the Office of the RSJ and the Kitchener Trial Co-ordination Office. We therefore had three days booked to conclude the trial (April 28, April 29 and May 9). I granted Father’s request to adjourn overnight.

25On Thursday, April 28, Father wrote to the Court advising that he was having suicidal thoughts. The trial was adjourned to the September sittings and, having regard to Father’s representations about his mental instability, I ordered on an interim, without prejudice basis that the children would remain primarily with Mother who would have sole decision-making authority until further Order of the Court. I wrote:

5It is in the best interests of the parties’ two children, Reilly and Jordan, for a temporary order to be made regarding decision-making and parenting time on a without prejudice basis pending the continuation of the trial. Mr. Fernandes, being in the midst of a deteriorating mental health situation, is not in a position to care for them at this time. Based on the evidence presented by Ms. Fernandes and by the Participant Expert witnesses, and having reviewed Mr. Fernandes’ evidence in chief (submitted in writing), it is clear that Ms. Fernandes has consistently supported the children’s relationship with their father (and his family), that she will encourage them (being teenagers) to make decisions regarding their medical care and education in a manner that is age-appropriate and provides them with agency, and that she has a loving and stable household ready for them in this time of crisis.

26Father did not attend Speak To Court before Justice Madsen on August 29, 2022. Her Honour confirmed that the trial would proceed as scheduled commencing Tuesday, September 6, 2022.

27On Tuesday, September 6, 2022, Father again asked to adjourn the trial and indicated on three separate occasions through the day that he was going to discontinue his participation. The details regarding the situation are set out at paragraphs 4 through 9 of my Endorsement dated October 7, 2022 which has been separately reported as Fernandes v. Fernandes, 2022 ONSC 5419.

28During the day’s proceedings, it was confirmed that Father would provide his evidence regarding the implementation of the Temporary, Without Prejudice Order through the Summer months during his cross-examination. Mother would provide her corresponding evidence by way of her right of reply, and Father would be able to cross-examine her.

29On Wednesday, September 7, 2022, Father emailed the Court again indicating that he was having suicidal thoughts and requesting an indefinite adjournment of the trial. He did not attend. I declined to adjourn the trial and took the step of authorizing him to have a non-lawyer representative attend on his behalf to cross-examine Mother on her anticipated reply evidence. The trial was set to proceed on Thursday, September 8, 2022 at 10:00 a.m. I concluded:

23It cannot be said that Mr. Fernandes has been denied the right to be heard. His evidence has largely been provided to the Court. There is no clear evidence that he is, in fact, unable to continue this trial, and the evidence suggests that he was fully capable of managing his day-to-day obligations throughout the Summer months without any mental health treatment plan. Having observed his demeanour during yesterday’s proceedings, I find that he presented himself in a cogent and capable manner. I prefer this assessment, based on live testimony, to the evidence that he submits in writing via Exhibit 118. I do not find his purported reason for failing to attend today credible, and I find rather that he is choosing not to attend. Having regard to the significant amount of evidence from Mr. Fernandes personally which will be available to the Court in reaching a decision on the merits, I find that there is little to no prejudice to Mr. Fernandes should this trial continue in his absence.

24I further find that the issues raised are extremely serious. This litigation has been ongoing for eight years, more than half the lifespan of the parties’ younger child, Jordan. It is undisputed that Jordan is suffering from Anorexia Nervosa for which he is receiving ongoing treatment. Mr. Fernandes admitted that he has used Jordan as a conduit for communication between the parties around contentious issues, most recently in the very late return of the children’s Passports to Ms. Fernandes. Mr. Fernandes admitted that he will continue to flout Court

Orders that he believes run contrary to his assessment of the best interests of the parties’ children. The Temporary, Without Prejudice Order was intended to be just that: Mr. Fernandes’ request to adjourn this trial further is counter-intuitive considering his view that the current parenting arrangements are hurting the children. Having regard to Reilly’s international dance competition in November, the trial continuation could be further delayed until the January 2023 Sittings, which is not in the children’s best interests. I find that a delay of this trial is likely to have severe negative consequences for the Fernandes children.

30On Thursday, September 8, 2022, mere minutes before 10:00 a.m., it became apparent that my Endorsement of September 7, 2022 had not been sent to the parties. As Father was thus not aware that the trial was proceeding and that he had been granted the opportunity to authorize a representative to attend on his behalf, I adjourned the proceeding to Friday, September 9, 2022 at 11:30 a.m.

31Unfortunately, Father again chose not to attend or to send a representative on September 9, 2022. The proceeding thus continued in his absence with reply evidence from Mother. In addition to her review of the experience of the summer parenting time pursuant to the Temporary, Without Prejudice Order, Mother attested that Father picked up the children for his parenting time on September 7th when he had represented to this Court that he was unable to participate in the trial.

Discussion and Conclusion

32Procedural fairness is a hallmark of the Rule of Law. Self-represented litigants, who appear with increasing frequency in our Courts (and particularly in Family Courts), must be afforded special graces in the management of litigation by the judiciary, but no one is entitled to carte blanche, and neither litigant nor counsel set the rules for the proceeding. Control of the courtroom and its procedures is squarely the responsibility of the presiding judge, and a broad claim of procedural fairness does not equate to an unruly or interminable proceeding. In the oft-quoted case of Ashmore², heard in the House of Lords in 1992, the unanimous court wrote:

The Court of Appeal appear to have taken the view that the plaintiffs were entitled as of right to have their case tried to conclusion in such manner as they thought fit and if necessary after all the evidence on both sides had been adduced. With great respect, ... I emphatically disagree. In the Commercial Court and indeed in any trial court it is the trial judge who has control of the proceedings. It is part of his duty to identify the crucial issues and to see they are tried as expeditiously and as inexpensively as possible. ... Litigants are not entitled to the uncontrolled use of a trial judge’s time. Other litigants await their turn. Litigants are only entitled to so much of the trial judge’s time as is necessary for the proper determination of the relevant issues.

33Father was, and remains, entitled to a well-reasoned decision consistent with applicable legal principles based on the evidence tendered during a reasonably-paced trial. He was not entitled to prolong the process and was given the benefit of the doubt with respect to his claimed inability to continue in the Spring of 2022. As the House of Lords pointed out, “other litigants await their turn.” To this basic precept, equally-appliable in overworked Family Courts, I would point out the special additional factor in family litigation: children await their turn for closure.

Part II: Background and Undisputed Facts

34The parties were married on June 4, 2005 and separated on February 1, 2014 and were divorced by Order of Justice Gordon dated November 4, 2015. They have two children together, Reilly (now 16) and Jordan (now 14).

35The parties signed a Separation Agreement dated February 18, 2014, not quite three weeks after their date of separation. The Separation Agreement provides for:

a. Joint custody (now decision-making) of the children.

b. Regular parenting time with the children residing with Mother from Sunday – Friday in each week and on one weekend out of three, and with Father for two weekends out of three.

c. A requirement that the children be in Father’s care “on evenings that [Mother] works at her home.”

d. A right of first refusal, without any specifications regarding a minimum duration of parenting coverage.

e. Emphasis on the parties and the children attending scheduled extra-curricular activities.

f. A holiday parenting schedule.

g. Full access to the children’s medical and educational records by both parties.

h. Reflexive and equal provisions for travelling with the children, with Mother to be the librarian of the children’s Passports.

i. support of the children by the payment of:

i. $500 monthly by Father to Mother;

ii. Father to pay all clothing and educational expenses, including post- secondary education;

iii. Father to pay all extra-curricular activities and equipment, including dance, dance costumes, competition fees, competition hotel fees, hockey, swimming, baseball, golf and piano;

iv. Father to pay all special and extraordinary expenses for the children.

j. Should Father default in payment, child support was to be reviewable, with expenses to be shared proportionately to income.

k. Before pursuing litigation, mediation was to be attempted to resolve issues “concerning parenting, child support, spousal support or life insurance” with the cost to be shared equally.

l. Only the issues of parenting, child support, spousal support and insurance coverage were to be subject to review as a result of a material change in circumstances.

m. The parties’ property was divided, inclusive of all assets and liabilities. The parties divided their Registered Retirement Savings assets equally between them. Parameters were established for the sale of the parties’ jointly-owned rental property, 99 Newport Drive in Cambridge, with the net proceeds of sale to be “held in trust and will be used solely for the benefit of the children, as agreed” by the parties.

n. Each party’s assets and liabilities were set out on separate schedules. Once Father paid Mother $50,000 concurrently with the transfer of the parties’ matrimonial home, Father retained net assets of roughly $121,000 and Mother retained roughly

$59,200. The schedule for Father shows $62,000 (without deduction for anticipated income taxes) of the $121,000 as being attributable to two pension assets. If those

are backed out of his asset schedule, he retained roughly $59,000 in liquid assets.

No amounts were specified for credit card debts which Father took over.³

36Father took the position that, in addition to the requirement that the children were to be in his care if Mother was working in her home, Mother could not care for the children when she was required to be at her dance studio, and further that only he could transport Jordan to and from his sports activities. Mother’s dance classes operated primarily on evenings and weekends. As a result, the already-challenging schedule became chaotic such that the children (and particularly Jordan) were being pulled between their two households on an almost-daily basis.

37Both parties have re-partnered. Father has two young children with his fiancée, Jennifer Ellis.

38Mother operates her own dance studio. Father was employed by Loblaws Canada in an executive capacity at the outset of the trial but his status at its conclusion was unclear.

39In his Answer dated March 31, 2015, Father set out the following as “Uncontested Facts: Respondent’s Agreement with relief sought in Application”:

a. A divorce;

b. spousal support of $1,000 monthly to termination on March 1, 2024;

c. police assistance clause; and

d. coverage of Mother and the children as beneficiaries of extended health care benefits through Father’s employment so long as they qualify.

(1) It is relevant to the Court’s assessment under section 15.1(5)(a) of the Divorce Act of the existence of any “special provisions” regarding financial issues in a Separation Agreement in determining any adjustment to child support.

(2) It became apparent when Father was cross-examined that he had, in fact, sold the rental property without providing notice to Mother and that he had personally retained the net proceeds of sale (i.e. they had not been held in trust for the benefit of the children). That issue is addressed later in these Reasons.

40In addition to requesting the involvement of the Office of the Children’s Lawyer (“OCL”), the parties resolved the following uncontested issues before Mr. Justice P.J. Flynn on a final basis by Order dated August 17, 2015 (the “Flynn Order”):

a. Divorce severed from the corollary relief;

b. Mother and the children being maintained as beneficiaries of Father’s medical and extended health care benefits available through employment;

c. both parties to designate the children as irrevocable beneficiaries of then-existing life insurance policies, each listing the other party as trustee;

d. spousal support at the rate of $1,000 monthly to conclude with the payment on March 1, 2024; and

e. both children’s Passports to be returned to Mother’s care.

41On February 17, 2016, Ms. Barbara Dyszuk released her Clinician Report as OCL appointed via the Flynn Order. Ms. Dyszuk recommended that Father have sole custody and primary residence of both children, who would spend Thursdays overnight and alternate weekends in Mother’s care. The Report provided for an equitable sharing of holiday parenting time and recommended conflict coaching and individual counselling for both parties. Mother served and filed a Dispute dated March 11, 2016.

42On February 13, 2019, Mr. Justice D. Broad found Father in contempt of the Flynn Order and ordered him to pay a penalty of $2,000 and $4,500 in costs. Father’s consent to any of Mother’s travel plans with the children outside of Canada was dispensed with as was his signature or involvement in the application for or renewal of the children’s Passports. Father was not ordered to return the Passports to Mother, as he had done so two days before Mother’s motion was argued. His Honour wrote:

The Respondent acknowledged that he did not return the passports in accordance with Flynn, J.’s Order and that he used the passports as bargaining chips in the negotiation with the Applicant. It appears that the contempt has been deliberate and sustained.

The Respondent by his actions has demonstrated that he has little regard to or respect for Court Orders.

43At some point thereafter in 2019, the parties agreed to expand Father’s parenting time such that the children were in Father’s care from Sundays at 7:00 p.m. to Wednesdays at 1:00 p.m. and in Mother’s care from Wednesdays at 1:00 p.m. through to Fridays at 6:00 p.m. By mid-2020, the parties agreed to return to the original schedule such that the children were living primarily with Mother and spending two out of three weekends in Father’s care, which weekends were expanded to include Thursday nights.

44On December 23, 2020, the parties agreed to move to a “week about” parenting schedule with exchanges to take place on Sundays at 7:00 p.m., with the first iteration to take place on January 2, 2021 with the children being in Mother’s care for the week thereafter. Also on that date, the parties agreed to appoint Phaedra Klodner as a privately-retained lawyer for the children to prepare a Voice of the Child Report. Ms. Klodner’s report was provided on March 4, 2021 and confirmed the children’s preference to remain on the “week about” schedule.

45In December of 2021, Father unilaterally changed the “week about” schedule by sending an email addressed to his partner and the children dated December 4, 2021. He wrote “Hi Kids, Here is the Christmas and new schedule” and set out “New schedule starts Jan 2nd”. The “new schedule” was effectively a return to the previous schedule such that the children were in Father’s care two out of three weekends (Thursday – Sunday) and otherwise in Mother’s care, with the addition of the Thursday overnight in Father’s care immediately preceding Mother’s weekend. This plan was not communicated by Father to Mother until December 29, 2021.

46Serious attempts at resolution were made by Madam Justice J. Walters, including two multi-day settlement conferences in December 2021 and February 2022, to no avail. In her closing endorsement following the second settlement conference attempt, Her Honour wrote: “The parties have worked very hard on all the issues but unfortunately the matter is not resolved.”

47The “new schedule” set in place in January of 2022 continued until my Temporary, Without Prejudice Order made mid-trial on April 28, 2022 in response to Father’s mental health crisis. My Endorsement of that date is attached as Schedule “B” to these Reasons. I ordered that the children

would be primarily resident with Mother, residing with Father on alternate weekends from Thursday after school (or 5:00 p.m.) through to Sunday at 8:00 p.m. I ordered that Mother (or her designate, who could include Father or a member of his support network) was to provide all transportation to and from Father’s home and all scheduled activities, and that Mother was to be the keeper of all associated activity or sports equipment. Note that Father attested that this Temporary, Without Prejudice Order “removed [him] from their lives” and that he felt it was his obligation to let Mother’s spouse know that she was hurting the children by providing transportation for them. He further stated that he had to retain the hockey equipment because he could not let Jordan “get hurt any more than he already is.”

48Reilly (now 16 ½) is a successful dancer and straight-A student who competes internationally and enjoyed three weeks of intensive dance training in Toronto though the Summer of 2022. She resides primarily with Mother and, while generally following the parenting schedule, will contact Father directly if she wishes to make any changes thereto.

49Jordan (now 14) is similarly hard-working and academically inclined. He is a devoted hockey player and fan of the Toronto Maple Leafs. In the off-season, he enjoys golf. Jordan has developed anorexia nervosa and, unfortunately, arranging proper care for him has been one of the main struggles between the parties for more than a year.

Part III: Witnesses & Evidence

50There are some cases which merit a detailed and meticulous review of the evidence and others in which a granular analysis will undoubtedly lead to further conflict. This case is the latter, and so my review of the evidence that follows throughout this decision is intentionally broadly framed and focuses on the conclusions to be drawn therefrom.

Evidence and Credibility of the Parties

51Mother testified in chief and was cross-examined. Father’s testimony in chief was provided by way of written statement, affirmed by him on April 27, 2022 and entered as Exhibit 101 at trial on that date. Father spent only a short time on the stand on April 27th and asked to be permitted to return for cross-examination the following day. Father did not attend on April 28,

2022. His cross-examination commenced on September 6, 2022 but he again failed to attend Court thereafter. As discussed in detail above, I ruled that the trial would continue in his absence.

52This is a highly toxic post-separation relationship. Mother alleges that Father was abusive throughout their marriage and continues to pattern such behaviours to harm and control her. Father mirrors these same accusations at Mother and goes further to allege that her goal is to harm and control the children (particularly Jordan), and that her single-minded fixation upon that goal takes priority over any consideration by her of the children’s best interests.

53There are three possible theories as to the source of the toxicity:

a. Father is the abusive source of toxic control.

b. Mother is the abusive source of toxic control.

c. Both parties are acting badly.

54For the reasons that follow, I conclude that it is Father who is the principal source of the abusive, irrational and toxic behaviours. Whilst Mother has certainly had lapses in judgment since separation, Father is, in a word, ungovernable. He is deceptive, impulsive, self-aggrandizing and unreliable. He has been demonstrably deceptive with Mother, with the OCL Clinician, with the children, and with the Court.

55Father’s litigation approach was to intimidate Mother and unnecessarily prolong the trial. His cross-examination of Mother included asking scurrilous questions about her sexual activity and libido, which could only be an ill-considered attempt to tarnish her personal reputation in the eyes of the Court. Father did not deny Mother’s evidence that he demanded sex from her as a condition of signing the Separation Agreement and admitted his understanding that she only participated in that act as part of the transaction. His evidence in cross-examination was repetitive and accusatory, although always couched in the most agreeable demeanour. His insistence on calling excessive and unnecessary witnesses was anticipated in the Trial Scheduling Endorsement Form. When Mother asked him why he had contacted four of her dance studio clients to ask them to be potential witnesses in this trial, his answer was that he “wanted to show no harm and zero

reason to keep me from the studio” by having these witnesses say whether he had “done anything wrong.” This assertion was in the context of his having been sent a letter long ago from Mother’s then-counsel confirming that he would be welcome to attend to support Reilly at an event at Mother’s dance studio. As it happened, Father did not call any of those individuals as witnesses.

56Father’s volatility includes an element of impulsivity. His goal appears to be to maintain complete control over the process of communication, and this goal takes priority over any substantive issue being communicated. When he initiates contact with Mother, it is through the means that he chooses. Sometimes he uses Our Family Wizard in compliance with the Orders made, sometimes he refuses to do so. If Mother does not respond to his communication within a time frame that he alone determines (and for which he gives no advance notice), he deems her unresponsiveness to be acquiescence. If Mother initiates the communication, he simply ignores it until the last possible moment, and then (sometimes) complies or acquiesces so that he can shirk any responsibility for the escalation of tensions.

57Father admitted that he will only comply with Court Orders that meet his assessment of the children’s best interests. He breaks his own promises, both when they are documented formally (in the Separation Agreement and Consent Orders) and when they are simply made verbally (such as his undertaking to produce documents during the trial). Although his demeanour was pleasant throughout the proceedings, his behaviour behind the scenes, as demonstrated by the nasty messages to Mother submitted as exhibits, is something else entirely. He fluctuates between extremes: sometimes calling Mother a “whore” and telling her to change her surname as it shames his family; at other times addressing her colloquially (“Hey, Girl”) and sending kissy-face emojis. When confronted with these messages, he falls back upon a rote recitation of hollow almost- apologies, saying that he realizes that he shouldn’t have sent them, but excusing himself because of the overall stress in his life.

58Where there is a discrepancy between the evidence of Father and of any other witness, I prefer the evidence of the other witness.

Participant Experts’ Evidence

59Five “participant experts,” as defined by Rule 20.2(1), testified: Jordan’s counsellor, Ms. Jerilyn Hurwitz; privately-retained legal consultant to the children Ms. Phaedra Klodner; OCL Clinician Ms. Barbara Dyszuk; family physician Dr. Chase Reaume; and Jordan’s teacher Mr. Shawn Zarudny.

60Ms. Jerilyn Hurwitz presented as a candid and forthright witness with a clear recollection of her interactions with the parties and with Jordan. She has practiced as a Registered Social Worker with a Masters in Social Work for fifteen years, seeing patients in her own private practice for the last nine years. Her practice includes a focus on adolescents experiencing eating disorders, but she does not claim to be an expert in the area. It is clear that her priority was on treating Jordan and that, until Father interfered with their professional interaction, she and Jordan had formed an appropriate and positive relationship. I find her testimony to be credible and give it significant weight.

61Ms. Phaedra Klodner is the lawyer retained jointly by the parties to provide a private “Voice of the Child” Report in accordance with paragraph 2 of the Minutes of Settlement submitted to Justice Walters on December 23, 2020. The original intention was for her Report to be submitted as an exhibit to a covering Affidavit; she was called as the Court’s witness at Father’s request, as he sought to cross-examine her. Ms. Klodner’s experience in advising and representing children is considerable and her credibility unassailable. During her testimony, she was magnanimous in accepting Father’s apology for his complaint about her to the Law Society of Ontario.⁴ I give her evidence significant weight.

62Although Ms. Barbara Dyszuk’s testimony and credibility were solid, it became clear through the content of her Report and the course of her evidence that Father had misrepresented himself to her with the result that her recommendations were, at best, stale-dated and at worst,

misguided. Ms. Dyszuk’s investigation was conducted between November 16, 2015 and January 19, 2016, with her Report being released on February 17, 2016. The concerns expressed by Mother to Ms. Dyszuk were borne out after the Report was released: Father did deny passports and travel consent; he was charged as a result of the threatening communications; he expressed a desire to go to counselling for communication but failed to attend the conflict management course recommended by Family & Children’s Services. Despite giving an impression of agreeableness (undoubtedly consistent with his presentation at trial), his actions show a complete rejection of Ms. Dyszuk’s recommendations: he has monopolized Jordan’s activities despite recommendation 7 that the parent having care of the children should manage their activities; and he has refused to use Our Family Wizard consistently (recommendation 16) although court-ordered to do so⁵. Finally, the factual foundation underlying the Report is very different today: both parents have different partners; the children are in different ages and stages of development; and Jordan’s mental wellness has changed dramatically. Through no fault of the Clinician, the Report does not accurately reflect the situation for this family. As a result, I place no weight on the conclusions and recommendations drawn in the Report and stated by Ms. Dyszuk in her testimony.

63Dr. Chase Reaume was somewhat cagey in his presentation, possibly as he was aware of the children’s hesitation around the COVID-19 mRNA injection. Father arranged a consultation appointment which took place on May 31, 2021 to enable the children to receive information regarding same, and Dr. Reaume’s evidence was that the conversation was positive and that at that time the children had not yet decided whether or not to receive a COVID-19 mRNA injection. Dr. Reaume told Mother by telephone on May 30, 2021 that his role was to inform about, but not directly recommend, the injection. Dr. Reaume confirmed in his evidence that he spoke with the children so that they could make “an informed decision” which was his goal for the appointment. He waffled when asked by Mother whether the children received the injection at his clinic thereafter, stating that the location of receipt would not appear in either child’s patient file. I do not take this as detracting from his credibility. Certainly, the current climate is very difficult for all health care practitioners who wish to retain their ability to provide patient-focused advice on

this highly-politicized issue. Further, his future connection with the family is unique amongst the Participant Experts: he will have to deal with both parents on an on-going basis in providing care to the Fernandes children. I find Dr. Reaume’s testimony to be credible and give it significant weight.

64Mr. Shawn Zarudny was Jordan’s Grade 7 teacher for the 2020-2021 academic year. His evidence, although limited in scope, was straight-forward and helpful. I accord it significant weight.

Personal Witnesses

65The following non-party, non-expert witnesses were called⁶:

a. Donna Beecraft, Maternal Grandmother to the children;

b. Chester (“Chuck”) Beecraft, Maternal Grandfather to the children;

c. Michael (“Mike”) Beecraft, Maternal Uncle to the children; and

d. Dana Sherriff, Maternal Stepmother to the children.

66All of these witnesses were calm and measured in their evidence. They did not give any impression of embellishing their testimony in support of Mother. Despite their experiences with Father, none of them showed any hostility toward him. If anything, each one seemed sad about the situation as a whole, worried for the emotional safety of Mother and the children, and relieved that the trial – and hopefully closure – had finally arrived. Among them, only Ms. Sherriff relayed comments attributed to the children. Subject to the separate analysis of the reliability of Ms. Sherriff’s evidence regarding those specific comments, addressed in the analysis of the children’s stated views and preferences below, I find all four maternal family witnesses to be credible and assign their evidence weight accordingly, taking into account their inherent (familial, not inappropriate) alignment with Mother.

Hearsay – Principled Exception re: Children’s Statements

67In CAS v. C.N. and H.C.⁷ I addressed the “principled exception” to the rule against hearsay in the admission of statements attributed to children as follows:

55It is a long-held tenet that children’s evidence is to be taken with great care with a view to minimizing any negative impact of the litigation process upon them. This regularly requires the presentation of evidence that would otherwise be excluded as inadmissible hearsay. In R. v. Khan, [1990] 2 S.C.R. 531, 1990 CanLII 77 (SCC), the Supreme Court of Canada provided clear direction in the admission of hearsay evidence to provide a child’s statements to the Court via an adult witness. For the unanimous Court, Madam Justice McLachlin wrote (pp 546 para. h – 547 para.c):

The first question should be whether reception of the hearsay statement is necessary. Necessity for these purposes must be interpreted as "reasonably necessary". The inadmissibility of the child's evidence might be one basis for a finding of necessity. But sound evidence based on psychological assessments that testimony in court might be traumatic for the child or harm the child might also serve. There may be other examples of circumstances which could establish the requirement of necessity.

The next question should be whether the evidence is reliable. Many considerations such as timing, demeanour, the personality of the child, the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement may be relevant on the issue of reliability. I would not wish to draw up a strict list of considerations for reliability, nor to suggest that certain categories of evidence (…) should be always regarded as reliable. The matters relevant to reliability will vary with the child and with the circumstances and are best left to the trial judge.

56The Court went on to caution us that the remaining safeguards to a party’s interests must be respected and maintained where hearsay evidence is being admitted, particularly in the case of child witnesses where cross- examination of the child him- or herself is not available.

Taken together with the generally-accepted view that active participation in litigation involving their parents (by means of viva voce testimony and being subjected to cross-examination by a parent or his or her lawyer) is contrary to the best interests of most children, it may be that the first branch of the Khan principled approach test – that the hearsay evidence is necessary – is always met in Ontario child protection matters. Perhaps modern child protection litigation in Ontario is now one of McLachlin, J’s “other examples of circumstances which could establish the requirement of necessity.”

68The Divorce Act includes the views and preferences of the children as one of the factors to be considered in assessing their best interests at section 16(3)(e). Although my reasoning in CAS

v. C.N. and H.C. was made in the child protection context, where the consideration of a child’s views and preferences is mandated unless same cannot be reasonably ascertained, it is useful in all family litigation. The language of the Divorce Act is softer, but it is not difficult to conclude that the evidence of the views and preferences of Reilly and Jordan could not be provided directly to this Court by way of their viva voce testimony without causing them serious harm. The level of toxicity between these parties, both of whom are self-representing, would render the questioning of either child by a parent in open court tantamount to emotional abuse. I would hypothesize that it would be a rare case when a child’s viva voce testimony should be provided; and in such cases safeguards such as legal representation of the parents and possibly the child him - or herself would be essential. Even adult children are distressed and torn when called upon to participate in their parents’ sticky matrimonial dispute – how much worse is such a situation for teens?

69I therefore conclude that the negative impact of testifying in matrimonial litigation renders the presentation of a child’s evidence through the hearsay statements of another witness “reasonably necessary” in all but the most exceptional of cases. The question of the reliability of the witness’ transmission of the statements themselves remains to be assessed with each witness on a case-by-case basis. Finally, it is up to the Trial Judge to further allocate weight to the statements based upon his or her assessment of each witness specifically and the evidence in general.

70In this matter, I find that each of the Participant Expert witnesses who testified about statements made by either child are both necessary and reliable, and thus admissible as exceptions

to the general rule against hearsay. I ascribe significant weight to the statements made by the children to Ms. Klodner, Ms. Hurwitz and Dr. Reaume. I attribute minimal weight – due primarily to the passage of time – to the statements made by the children to Ms. Dyszuk. I find the evidence presented by Ms. Sherriff to be credible and reliable, particularly as the statements relayed by her as having been made by Jordan cannot be seen as yielding any benefit to her.

Business Records

71The parties agreed that all education, health-related and business documents filed as exhibits at trial could be relied upon as business records without the need to call the author of each. Regarding the children, it was primarily school report cards and section 7 expense receipts entered into evidence. Business ledgers and taxation documentation, inclusive of some of the supporting underlying documents (such as Lease Agreements for rental expenses for Mother’s business) were similarly confirmed as records not requiring the evidence of the record-maker.

Part IV: Substantive Issues

72This matter raises the following substantive issues:

a. How are decisions to be made regarding the children’s health, education and welfare? What parenting schedule best suits each child?

b. How will child support and the apportionment of expenses for the children be handled?

c. How will the sale proceeds of 99 Newport Drive, Cambridge, be addressed so as to remediate compliance with the Separation Agreement?

d. Should a restraining order issue in any respect?

e. How should costs of this trial be addressed?

A. Parenting Issues

The Divorce Act Factors

73The sole focus is on the best interests of the children. In determining whether the best interests of the children require decisions to be made primarily by one parent or jointly by both parents, section 16 of the Divorce Act:

a. mandates that the primary consideration be each child’s “physical, emotional and psychological safety, security and well-being”;

b. incorporates and expands upon the inclusive list of factors delineated at sections 24(2) through 24(5) of the former text of the Children’s Law Reform Act, which factors guided many Ontario decisions before March 1, 2021;

c. adds the consideration of “any civil or criminal proceeding, order, condition or measure” relevant to the child’s circumstances;

d. sets out a non-exhaustive list of seven factors to be taken into account in assessing family violence; and

e. clarifies that the “Maximum Contact Principle” does not presume equally-shared parenting but rather means “that a child should have as much time with each spouse as is consistent with the best interests of the child.”

74Sections 16.1 through 16.4 and 16.6 of the Divorce Act apply to this family’s situation.⁸ The complete text of these sections, together with section 16, is reproduced as Schedule “A” to these Reasons⁹. With the greatest of respect to the drafters of the new language, any parenting order that focuses exclusively on the best interests of the children must, of necessity, make the children’s physical, emotional and psychological safety, security and well-being its primary consideration. Realistically, 16(2) adds nothing to the analytical framework of the “best interests” test. The factors for consideration, distilled from the balance of the above-listed sections, are:

a. each child’s needs having regard to his or her developmental stage;

b. each child’s relationship(s) with each of the parents¹⁰, extended family members and other people special to him or her;

c. each parent’s willingness to support the other’s role in the child’s life;

d. the history of care for the child;

e. each child’s views and preferences;

f. each child’s cultural heritage, inclusive of language and faith as applicable;

g. any plans for the child’s care;

h. each parent’s ability and willingness to meet each child’s needs;

i. the parents’ ability to communicate and co-operate with one another;

j. an assessment of family violence, taking into account:

i. the timing, severity and frequency of the incidents;

ii. any pattern of coercive or controlling behaviour;

iii. whether the child was subjected to or witnessed aspects of the violence;

iv. the harm or risk of harm to the child;

v. other compromises to the safety of the child or another family member;

vi. current fear experienced by the child or another family member arising from the family violence;

vii. any remedial steps taken by the violent parent; and

viii. any other relevant factor;

k. the impact, if any, of family violence on the ability of the offending parent to care for and meet the needs of each child;

l. the impact, if any, of family violence on the parents’ co-operation moving forward;

m. any legally-founded order, condition or measure relevant to the child’s safety, security and well-being;

n. past conduct only insofar as it is relevant to a parent’s participation in decision- making for, or parenting time with, the child;

o. the child’s entitlement to as much time with each parent as is consistent with his or her best interests;

p. a presumption that day-to-day decisions are to be made by the parent caring for the child at the time the decision arises, unless otherwise ordered by the court;

q. the best allocation of decision-making responsibility (regarding major decisions) as between the parents and/or any other participating individual;

r. the means by which information regarding each child’s health and education is to be sourced, i.e. whether as between the parents or from third parties directly;

s. the existence of a parenting plan submitted jointly by the parents to the court.

Analysis

75The following is my application of the facts as elicited during fourteen days of evidence, inclusive of the 132 exhibits filed, to these nineteen Divorce Act factors. As previously noted, this is the type of case that requires a holistic assessment of the evidence rather than a microscopic review of each factor and all potentially relevant considerations. This family has been suffering for a long time, and a reasonable approach to closure calls for clear and succinct conclusions.¹¹ I have therefore focused on five broad categories condensed from the Divorce Act factors: (1) the children’s needs; (2) the children’s relationships; (3) the children’s views and preferences; (4) the parents’ ability to manage their post-separation role; and (5) an assessment of family violence.

1.1 - Needs of the Children - Jordan’s Eating Disorder

76Mother first noticed Jordan becoming unreasonably thin in the Fall of 2020. As Mother saw Jordan eating well at her home, an eating disorder did not initially occur to her. She arranged for telephone appointments with Dr. Reaume and finally succeeded in scheduling an in-person appointment in December of 2020 and a follow up meeting with a dietician in January of 2021. At that time, the children were on a “week about” schedule and in the Spring of 2021 Mother attests that Jordan started to disclose that he was avoiding eating at Father’s house and that this behaviour had gone unnoticed there. An appointment was arranged between Father and Dr. Reaume to discuss the issue which Father cancelled. As Father did not use Our Family Wizard (which was both recommended by Ms. Dyszuk and had been ordered on consent as the communication conduit for the parties), Mother’s messages to him on the topic went unviewed. On May 27, 2021, Jordan attended at Grand River Hospital for a scheduled appointment with a paediatrician. After some preliminary testing, Jordan was admitted as an in-patient and kept overnight for observation. Jordan was placed on a waiting list for a specialized youth program

that Grand River Hospital had intended to start in the Summer of 2021 but did not open for some time thereafter.

77As a result of this delay, Mother found and contacted Ms. Hurwitz. Ms. Hurwitz explained that she had become available to treat Jordan, despite the significant waiting lists for such treatment in the community, because she had recently opened up additional capacity by taking on a full-time patient load. Although the scope of disclosures she was permitted by Jordan to make to the Court was limited, she made it clear that he was attending of his own volition and benefitted greatly from the treatment plans. She attested that she kept communications that she had with each party private in accordance with her policy requirements, and thus Mother learned at trial about a series of communications from Father (telephone messages and emails) objecting to her treatment of Jordan. Father made it clear through his questions in cross-examination that he continued to object to Ms. Hurwitz’ having ever treated Jordan despite Jordan’s clear consent and the obvious benefit to the child, who was engaging with the tools provided by Ms. Hurwitz and was keeping up with the meal plan that they had created together. When asked directly by Father why Jordan chose to pause his counselling with her, Ms. Hurwitz noted that: (1) Mother was supportive of Jordan’s choice to pause and reach out in future as necessary; and (2) she could not say with certainty that it was Jordan’s personal decision but pointed out that the decision took place immediately following a terse and accusatory email from Father dated March 21, 2022. In that email, Father accused Ms. Hurwitz of lying and wrote [sic]:

Jordan and I are very close and we talk about everything. He knows exactly how I feel and I know exactly how he feels. Unfortunately he is afraid of his mother and won’t always be upfront with him. He has told me you are not helping him but is too nice to tell you that.

You have been seeing him for months and you keep saying things will get better with him but they are only getting worse. Stop hurting my son please.

78Although Jordan’s contact with Ms. Hurwitz stopped, he continued to use the tools she introduced until he could get started with the hospital program. He messages Mother for support throughout the day regarding his food consumption, and the messages, some of which were entered collectively as Exhibit 29, are heart-wrenching. Although there were fluctuations in his weight

through the first year of treatment, the parties agree that Jordan successfully gained 8 pounds between August 15 and September 6, 2022.

79Jordan is currently followed by a team at Grand River Hospital’s Child and Adolescent Mental Health Unit, including Dr. Norris¹², with whom he has had several appointments. In order to avoid direct communication¹³, the parties agreed that the parent not in attendance would be contacted by Dr. Norris by telephone during the appointment. Father took Jordan to one appointment and failed to ensure that Mother was participating by telephone. Mother took Jordan to two appointments and, on each occasion, Dr. Norris tried to telephone Father and he either hung up or didn’t answer the telephone. Thereafter, Mother used Our Family Wizard to communicate her notes from the appointments with Dr. Norris, but Father has rarely viewed the messages. As Mother said: “everything has been used as a way to harass, control and make what could be so possible, impossible.”

1.2 - Needs of the Children – Other Medical

80Three days after Jordan was released from hospital following his unplanned admission due to the severity of his anorexic presentation, Father chose to take the children to speak with Dr. Reaume about the COVID-19 mRNA injection. The children had, to that point, declined to receive it. It is undisputed that Mother had concerns about the injection, that she has been diagnosed as injured following receipt of a single dose¹⁴, and that the parties did not have the routine childhood vaccinations administered to the children when they were married. With this context, I conclude that Father’s choice in taking the children to the consultation appointment with Dr. Reaume regarding the COVID-19 injections three days after Jordan left hospital was not motivated by their best interests. It is entirely likely that Father himself is so dysregulated that he cannot see how

taking an anorexic child who has just left hospital to discuss an unrelated medical procedure would unduly burden that child.

1.3 - Needs of the Children – Academic and Extra-curricular

81Both parents have been very supportive of the children’s academic and extra-curricular success. Unfortunately, however, Father has caused difficulties with Reilly’s competition-related travel plans and his encouragement of Jordan’s sports activities borders on fanatical. He does not appear to understand why Jordan could not immediately resume a full regimen of pre-season training in the Summer of 2021. He cannot contemplate the possibility that Mother is equally capable of managing Jordan’s equipment and attendance at practices. He has consistently pulled the children away from planned events with their maternal family so as to prioritize their attendance at sports lessons and practices. He manipulated this Court’s Order of April 28, 2022 requiring Jordan’s equipment to be delivered to Mother by initially providing access to it and then, ostensibly at Jordan’s request, taking it back and refusing to transfer it further to her care.

1.4 - Needs of the Children – Conclusion

82I find that Father believes himself to be ready and willing to support the children and to meet their needs. He is very capable of projecting the image of the caring and involved parent to all service providers. However, he shows an overarching need to control the situation and minimize or deride Mother’s supporting role. Father’s lack of insight cannot help but affect Jordan: at a minimum, it communicates his disbelief in Mother’s sincerity in supporting Jordan in his activities; at its worst, it has inserted a wedge between Jordan and a successful path of treatment for anorexia which could place Jordan’s health at risk.

83In contrast, Mother has demonstrated the ability to balance the children’s activities and goals in guiding them supportively toward adulthood. She has intentionally stepped back from conflict with Father over Jordan’s hockey equipment and attendance where she determined that this participation would not harm his physical recovery.

84I conclude that Mother has shown greater insight in meeting the children’s needs than has Father, and this includes the parties’ history of caring for the children since the Separation Agreement was signed.

2 - Children’s Relationships with Family Members

85There is no question that both parents love their children, and that the children love their parents. This dynamic has been consistently observed by Ms. Dyszuk; Ms. Klodner; and all of the maternal family witnesses.

86The children are also close to their maternal grandparents and Maternal Stepmother. They have regular and positive contact with their paternal family as well.¹⁵ Maternal Uncle clearly seeks to encourage a deeper relationship between Reilly and Jordan and his own children but was compelled to take a cautious approach so as to ensure that his own children would not be exposed to the toxicity in the Fernandes household (both before and after separation). Regarding the involvement of the stepmothers in the lives of the children, Ms. Klodner observed that both Ms. Ellis and Ms. Sherriff were clearly committed to the children and supportive and loving towards them. With all of these supportive adults surrounding Reilly and Jordan, the real question then becomes which parent will encourage and facilitate these supportive relationships.

87The children also have two siblings in Father’s home; this Court presumes that these inter- sibling relationships are loving and fulfilling for Reilly and Jordan.

3 – Children’s Views and Preferences

88An assessment of the views and preferences of children must be informed by an understanding of each child’s mental and emotional state at the time the view is expressed. For this reason, associated evidence is considered under this heading.

3.1 - Reilly

89Broadly speaking, the parties agree that Reilly is old enough to prioritize for herself parenting time with each of them and to balance this with her other responsibilities academically and with respect to her accelerating dance career. Generally, she has followed the parenting time

schedule as agreed upon between her parents or as set out by the Court. As her views and preferences are already being respected, I do not have to formally canvass them in order to determine what parenting arrangement is in her best interests.

3.2 - Jordan

90Jordan’s situation is completely different. As the hockey player and son, Father clearly places greater weight on his day-to-day contact with Jordan. On the basis of the odd wording of the Separation Agreement which required the children to be in Father’s care when Mother was working, even if she was working from home, Father had Jordan out of Mother’s home and in his care almost daily. The situation was this: Mother, having run a dance studio since before separation, would be teaching or dealing with other related business on evenings and weekends. Reilly would often be dancing with her (or in another class while she worked). Jordan danced for a period of time, but his hockey obligations quickly took centre stage in his life. Father would insist on collecting Jordan from Mother’s home, saying that Mother was incapable of parenting Jordan and conducting her dance studio business at the same time.

91Until the Temporary, Without Prejudice Order, Father would also collect Jordan hours before his activities when same took place on Mother’s parenting time, even if that meant that Jordan would be in the care of his partner, Ms. Ellis, until he finished work. In Father’s clearly- stated view, Jordan was better off with his partner than with the Maternal Stepmother. Father has used Jordan’s activities as an excuse to control and hamper Jordan’s contact with his maternal family, using them to limit Jordan’s attendance at special events such as his Great-Grandmother’s and Grandmother’s milestone birthday parties. In his testimony, Father claimed that his refusal to return Jordan’s hockey equipment (in violation of the Temporary, Without Prejudice Order) was at Jordan’s request because Mother and her family could not be trusted with it. Father claimed in his testimony that Jordan does not want to attend hockey with Mother’s family and that Maternal Stepmother’s attendance to provide transportation is hurting Jordan.

92Jordan is in a very precarious position. Even after I clearly ordered that the children would not testify, Father declared in his cross-examination: “We should get Jordan on the stand here.” At best, Father has no insight into the toxic impact of the conflict on Jordan. In these

circumstances, Jordan’s anorexia nervosa is not surprising in response to a situation over which he otherwise has no control.

93In the evidence, Jordan’s views and preferences are expressed to four people: Dr. Reaume; Ms. Hurwitz, his counsellor; Ms. Klodner, his legal consultant; and Ms. Sherriff, his Maternal Stepmother. For clarity, I do not accept any evidence from Father purporting to report statements attributable to Jordan. In order to maintain an even-handed approach, and without impugning Mother’s credibility, I have also chosen to disregard Mother’s evidence of statements attributed to Jordan.

94Dr. Reaume’s evidence regarding Jordan’s views is limited in scope but nonetheless significant. Before Jordan was diagnosed with anorexia nervosa in May of 2021, Mother had advised Dr. Reaume of her concerns about Jordan’s visible weight loss in April. On April 26, 2021, Mother brought Jordan in for an appointment with Dr. Reaume. They discussed having a companion appointment with Father to talk about Jordan’s health. Dr. Reaume asked if it was Jordan’s preference that he – Dr. Reaume – contact Father to describe the situation and schedule the appointment. Jordan clearly stated that he preferred that Dr. Reaume speak with Father about the medical situation. Dr. Reaume spoke with Father by telephone on May 18, 2021. Before an in-person appointment with Father and Jordan could be arranged, Jordan was hospitalized.

95Ms. Hurwitz has had the opportunity to delve most deeply into Jordan’s emotional state. As his therapist, he is her priority. On the stand, Ms. Hurwitz advised that Jordan had provided his consent to share only basic information, and so the Court ordered that she answer questions even where the content of the answers exceeded the scope of consent given by Jordan. Any evidence given by Ms. Hurwitz as a result is not a violation of Jordan’s privacy interests. Ms. Hurwitz described the techniques that she had suggested to Jordan which appeared to be having a positive effect in helping him to externalize the disorder and to separate his own identity from it. She opined that Jordan was a strong candidate for smooth recovery, as he was not in denial of the condition but was relatively open about it. She observed Jordan having a lot of guilt and shame and engaging in a lot of negative self-talk. She observed that Jordan was very close to Mother, who was a strong support for him through treatment. She noted that Jordan had always been engaged in working with her toward a healthy outcome and that Jordan had never indicated

reluctance to participate in her course of treatment. Their professional relationship ended with Jordan telling her that he wanted to “take a break.” She was careful in her comments, but it was apparent that she viewed the discontinuation of treatment by Jordan as being influenced by Father’s negative opinion of her and her work.

96Ms. Klodner was jointly retained by the parties to provide a private “Voice of the Child” Report, entered as Exhibit 98 at trial. Ms. Klodner observed that both parents “love their children fiercely” and that neither parent expressed concern that the children could not freely speak with her. She described the Fernandes children as among the “most amazing, intelligent, articulate, kind and funny children” she has interviewed in her twenty-five years of working with children and youth. She observed Reilly and Jordan to be close and comfortable with one another. The children’s views were intelligently articulated and strong. They were goal-oriented and consistent and the answers to her questions were “very spontaneous” and had the flow of uninfluenced discussion. Both children expressed that they liked the week-about schedule because it minimized the back-and-forth between homes. They both expressed that they miss one parent (and his or her household) when in the other parent’s care. Jordan made two things clear: (1) that he wants Mother and her family to attend more of his hockey events; and (2) that he would want to spend time in the care of his other parent, not extended family, if one parent was unable to care for him overnight.

97Maternal Stepmother Ms. Sherriff attested that the conflict around parenting time, and particularly at the children’s activities, caused the children great stress. She commented that she had seen them crying many times as a result. She noted that the overall tension of parenting exchanges decreased significantly when Ms. Ellis was providing transportation for the duration of the Peace Bond. She attested that their only means of determining Jordan’s activity schedule had been to discuss it with him at the beginning of each week. Jordan advised her that he did not want to be picked up by Father (or Ms. Ellis) three hours early in advance of hockey events. He has expressed frustration to her about the situation, and at one time said to her: “I want you to bring me to hockey, but I’m just going to go with Dad because it’s easier.” She has observed Jordan as hypervigilant in anticipation of pick-up times such that, for example, he would leave a family card game and wait with his coat on by the door for Father or Ms. Ellis to arrive. She further attested

that Jordan has told her that he wants to be part of Mother’s dance studio and attend in support of Reilly and the studio at competitions.

4 – Parents’ Ability to Manage Post-Separation Roles

98Under this heading, I include each parent’s ability to support the children’s relationships with one another and with extended family. I also include evidence supporting each parent’s professed desire for a positive post-separation relationship. Finally, communication between the parties is assessed.

4.1 – Children’s Relationships with Family

99Simply stated, the evidence is clear that Father cannot control his venom toward anyone who he sees as supportive of Mother; this cannot help but influence the children’s relationships with their maternal family as a result of the awkwardness and disconnect that ensue. The following are selected examples:

a. Father approached Maternal Grandmother when she and Maternal Grandfather attended a baseball game and a hockey game in support of Jordan. On each occasion, Father was screaming at her, saying that she was a “terrible grandmother” and telling her that she was not “allowed” to be at the events. At the baseball game, another parent intervened. At the hockey game, she walked away. Maternal Grandmother did not attend another baseball game. She only recently resumed attending at Jordan’s hockey games on the basis that Father is now a parent volunteer with the team and thus he will be too busy to approach her.

b. Father initially confirmed that the children could attend their Great-Grandmother’s 90th birthday, then refused his consent, and finally relented such that the children attended for a short time.

c. Father allowed the children to attend Maternal Grandmother’s 60th birthday dinner at a restaurant in Cambridge for not more than an hour.

d. Maternal Uncle and his wife decided that, due to Father’s volatility, they could not permit their children (cousins to Reilly and Jordan) to visit at Mother’s home without one of them being present, out of fear that their children would be exposed to toxicity or possibly family violence.

e. When Maternal Grandfather attended (as had been pre-arranged) to collect the children following Paternal Grandfather’s birthday party at Father’s home, Father reacted violently to the positive interaction between the two Grandfathers. Father,

enraged and screaming, forced the upper portion of his body into Maternal Grandfather’s car window while the children were in the vehicle and had to be forcibly removed by his own brother (a Paternal Uncle to the children).

f. Maternal Grandfather attested that, as a result, they didn’t want to cause any friction or disturbances at a function and so were “basically cut out of the picture at that point.” He expressed regret at being “pushed aside” and missing many of the children’s activities.

g. When Father made a scene at Reilly’s dance competition by angrily demanding that the children leave with him, causing both children to cry, Maternal Stepmother approached the children to comfort them. She attested that she said to Jordan: “I love you buddy, it’s OK, we’ll see you later” and hugged the child. Father yelled: “You better not touch my son!” The scene ended with both children still crying.

100Although he heard the evidence of maternal family members regarding the reasons for their having distanced themselves from the children, he claimed that they in fact are choosing not to have a close relationship with Mother and the children because they do not want to be involved in the children’s activities. In cross-examination he stated: “if they choose not to have a relationship with you and Reilly and Jordan, that’s their choice, I would appreciate you not trying to turn this around on me.”

101I pause here to underscore that Father’s presentation to this Court was almost exclusively placid and agreeable. However, Father admitted to his bad behaviour throughout his testimony and in examining certain of the witnesses. I conclude that Father behaves differently depending upon on the situation, dealing irascibly with Mother and her family but taking a calm approach where he seeks to give the impression of agreeableness (i.e. with the Participant Experts, other than Ms. Hurwitz, and the Court). It is an unfortunate reality that Father finds himself unable to support the children’s relationships with their maternal family.

4.2 - Parents’ Post-Separation Views of One Another

102Mother attested that she is seeking sole decision-making authority not to control the situation but because it is impossible to receive respectful communications from Father. She expressed that she would listen to Father’s input and that she would not stand in the way of ensuring the children had proper and timely health care. She used Reilly’s chiropractic care as an example: Reilly had seen a chiropractor as needed from birth until the Spring of 2019; Father than

unilaterally caused the discontinuation of this care at a time when Reilly was experiencing headaches and muscle pain. After providing Reilly’s then-chiropractor with updated medical covering information for his health plan, Father spontaneously declared that he would have to provide written consent before Reilly could attend each appointment. The chiropractor discontinued treatment and some time thereafter Father took Reilly to a different chiropractor and supported an intensive course of treatment. No rationale for this suspension, and then resumption, of care was provided.

103Father’s disdain for Mother was clear throughout the evidence. He posted the OCL Report on the door of Mother’s dance studio, which could only be for the purpose of trumpeting his perceived superiority as a parent and damaging her reputation with her customers. He truly believes that he should see the children daily so as to ensure that they are properly cared for and to shore up his relationship with them, which he presumes to be under constant attack. He has convinced himself that he is the righteous parent battling against Mother’s nefarious plot to cut him out of the children’s lives. He believes that Mother doesn’t care about the children and attested that she wants Jordan to be ill. He stated that she is “not a good person” and that she is intentionally hurting the children. He attested that Jordan in particular is “not comfortable” going to his sports events with Mother.

104Both parents profess a desire that the post-separation relationship could be positive. Father appears to believe that there is no reasonable impediment to positive interaction, although he has not undertaken to educate himself on communication or conflict-management strategies. In his evidence in chief¹⁶, he wrote [sic]: “I would like nothing more than to go to a coparent counseling with Ms. Fernandes to learn to communicate and be more respectful of each other for the childrens sakes. Although she may say it’s too late I don’t believe it’s ever too late. If the court could order us to go to co-parenting counseling it would be a big step in helping our children.” Mother has

completed Conflict Coaching for Co-Parents offered by Community Justice Initiatives and has continued with ongoing counselling to assist her in navigating the co-parenting relationship.

4.3 - Communication

105Father refused to use Our Family Wizard and refused to open emails sent to him by Mother’s then-counsel, Mr. Barry Paquette. As a result, he was not informed of Jordan’s eating disorder and hospital admission in a timely fashion. He was not aware that he could attend at Reilly’s dance event hosted at Mother’s dance studio. Thus, his behaviour directly impacted upon the health and welfare of the children.

106The examples of Father’s inability to communicate in a timely and professional manner about parenting issues are too numerous to list. Father claims not to understand the rationale for using Our Family Wizard with consistency, although he agreed to an Order mandating that platform for all communication. He asserts that Mother’s request to include his spouse in the use of Our Family Wizard “shows her inability to be rational.” He states that “the children are old enough to communicate their activities” and “I don’t believe it is necessary to put their activities in the calendar as we have a system at our house to help us co-ordinate all 4 childrens [sic] activities.” This latter statement provides no indication as to how Mother and Father would communicate about the activity schedule other than through the children – by “our house” Father meant his home with Ms. Ellis.

107Father believes that using emojis and saying “LOL you’re cute” and “love you” in his messages to Mother is “being nice.” He admitted that he has been aggressive and inappropriate in his communications with Mother, although denies being threatening or harassing. I conclude that Father in fact has no insight into the effect that his communications have on Mother. Simply stated, I do not conclude that he is intentionally selecting his words to cause her distress. I do, however, accept Mother’s evidence that Father’s unpredictability produces anxiety when communicating with him.

108I conclude that communication between the parties must be limited to brief, informative, focused written contact regarding only specific parenting issues. I further conclude that, in all of the circumstances impacting upon Jordan, requiring him to act as a conduit is directly contrary to

his best interests. Our Family Wizard provides a supportive tool to facilitate the flow of information. Reilly, being older and no longer subject to the same level of parental involvement in her daily life, may well be able to communicate directly with each parent regarding any major decisions for which she would seek their input.

4.4 – Conclusion

109Overall, the post-separation relationship between the parties is not only high in conflict, but it has an ongoing toxic impact upon the children and particularly Jordan. As between the parties, there is little doubt that Mother has consistently supported and managed the children’s relationship with Father and paternal family while the opposite, sadly, is not the case.

5 – Family Violence

110Family violence is defined in the Divorce Act as:

family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes

a. physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

b. sexual abuse;

c. threats to kill or cause bodily harm to any person;

d. harassment, including stalking;

e. the failure to provide the necessaries of life;

f. psychological abuse;

g. financial abuse;

h. threats to kill or harm an animal or damage property; and

i. the killing or harming of an animal or the damaging of property;

111This very broad definition of family violence serves to remind Canadians that, while its characteristics take many forms, any of these forms can create an imbalance of power in a relationship. It also serves to dispel myths around relationships characterized by power imbalance. For example, the fact that the survivor of the family violence did not contact police to report an incident does not mean that it did not take place. Similarly, the children’s ignorance of family violence in the relationship – because it is driven by financial and sexual abuse to which they are never directly exposed, for example – does not mean that they will be insulated from its future impact on their parents’ ability to make decisions together. Conversely, a division of responsibilities in a spousal partnership resulting in one partner taking carriage of the management of the family’s finances does not, in and of itself, constitute “financial abuse.” The Court must objectively assess the frequency, severity and recency of the incidents of family violence in weighing its impact upon a relationship. Human relationships are not easy, and the court must be very cautious, and must take a broad and comparative approach, in assessing the impact of family violence on post-separation co-parenting. Family violence, and its impact, is thus best assessed by the placement of each individual case on a spectrum that accounts for frequency, severity and recency rather than by using any kind of checklist-based metric.

112The parties commenced their relationship at a very young age: Mother was 16 and Father was 19. Some of the dysfunction in their early marriage can certainly be attributed to that factor. It is uncontested that Mother struck Father at the conclusion of an argument toward the end of the marriage. Without suggesting that physical violence is justified, I accept Mother’s evidence, supported by the observations of Maternal Grandfather, that Father would “needle” her and provoke her, refusing to allow her space to regain emotional control, as part of his participation in this toxic relationship.

113Where there may well have been some mutual engagement in toxicity during the marriage, however, I find that the separation brought about a significant change in the overall tone of the parties’ relationship. Starting with Father’s coercion of Mother into having sex with him as a condition of his signing the Separation Agreement, Father initiated a pattern of coercive control over Mother. This approach infiltrated all aspects of the post-separation relationship and may have been motivated by Father’s refusal to accept Mother’s departure from the marriage.

114Father admitted to having threatened Mother’s life in the context of believing that she could have been exposing the children to COVID-19. As a result, he was charged criminally and the charge resolved by means of a Peace Bond dated August 27, 2020 that remained in place for one year. The Peace Bond prohibited Father from communicating directly or indirectly with Mother except with her advance written consent; through counsel; to facilitate parenting time; or through a subsequently dated Family Court Order. The Peace Bond expired on August 27, 2021.

115Father has used derogatory and abusive language toward Mother and Maternal Grandmother, including asking Mother sexualized questions in this trial. This suggests an element of misogyny that is concerning to this Court. The question of Mother’s subjective fear is addressed in the context of the Restraining Order request, below, but I have no difficulty concluding that Father’s ongoing attempts to psychologically and emotionally abuse Mother threaten the wellbeing of both children, and particularly Jordan.

116I find as a fact that Father engaged in coercive control over Mother both at the time of separation and since, and that there exists a strong risk that he attempts to influence the children (and particularly Jordan) in a similar manner. Overall, I conclude that family violence is a factor in this matter and that Father is the perpetrator. Although such family violence takes an emotional and psychological form, I find that it continues to date with high frequency and consistency and thus is toward the higher end of the spectrum.

Conclusion on Parenting Issues

117There is no doubt that Father’s input into decision-making should be considered and accorded significant weight and respect. However, to presume a future possibility that the parents’ shattered post-separation relationship could heal to the point of permitting joint decision-making would be naïve in the extreme. More than seven years have passed, and Father’s beliefs that Mother seeks to harm the children and cut him out of their lives appear to be growing more entrenched over time. His patterns of coercive control are worrisome to this Court and, based on the evidence clearly showing his inability to participate positively in decision-making for the

children in a collaborative and timely fashion, an Order for joint decision-making would not be in their best interests.

118On the issue of parenting time, it is important to note that neither parent is seeking to return to the “week-about” schedule. Father asks to return to the schedule in the Separation Agreement whereby the children were in his care two out of three weekends. Mother seeks to maintain the Temporary, Without Prejudice schedule which has the children in her primary care and with Father on alternate weekends during the school year, with the week-about schedule to take over in the Summer. Thus, although the children clearly expressed to Ms. Klodner their desire to return to the week-about schedule, that is not a realistic option before the Court.

119Reilly, although not immune to the stress of her parents’ toxic post-separation relationship, is capable of managing her own affairs and her time in Father’s care.

120It is my view that Jordan is at serious risk of emotional and psychological harm as a direct result of Father’s behaviours. Were Jordan not already a teenager, and accustomed to spending considerable parenting time in Father’s care, I would have seriously considered ordering that Father’s parenting time be supervised until Jordan’s mental health stabilizes. At a minimum, Jordan’s health and wellbeing necessitate much clearer boundaries than have thus far (at least until April 2022) been implemented. He needs to be taken out of the line of communication between the parties and allowed to focus on his own healing and on his academic and athletic future.

121For all of these reasons, the terms of the existing Temporary Without Prejudice Order will continue on a final basis with some minor adjustments¹⁷:

a. After reasonable and sincere consultation, Mother will make decisions for the children, who will reside primarily with her. Mother will provide Father will all available information regarding any major decision to be made, inclusive of contact information for any service providers involved.

b. Subject to the children’s stated preferences and the policies of any health care provider considering the ages of the children, Father will have otherwise

unrestricted access to information regarding the health, education and activities of the children and shall be entitled to obtain such information directly from the providers.

c. The children will spend alternate weekends in Father’s care.

d. Subject to some adjustment to the procedure for apportioning undefined holiday time, the holiday parenting schedule set out at paragraph 4(e) of the Separation Agreement will continue.

e. In accordance with Jordan’s stated wishes, in the event that either parent should require parenting coverage for more than 36 hours (i.e. one day and overnight), the other will have the right of first refusal.

f. Both parents are encouraged to participate in the children’s activities, and the children will attend their scheduled activities from the home of either parent, with Mother providing transportation to and from parenting time and activities, subject to her discretionary ability to assign an agent for such transportation.

g. Activity equipment will travel with the children, meaning that it will remain in Mother’s care (or that of her transportation agent).

h. Provided that it does not negatively impact his parenting time, Father’s consent to the children’s travel with Mother will be dispensed with.

i. Mother will continue to be the librarian for the children’s government-issued documents.

B. Financial Support for the Children

122I note that neither party is seeking to vary spousal support as set out in the parties’ Separation Agreement, which continues to be payable by Father to Mother at the rate of $1,000 monthly until the final payment due on March 1, 2024.

123Thus, there are three areas of financial support for the Fernandes children at play in this matter: (1) retroactive adjustment to child support; (2) go-forward child support; and (3) special and extraordinary expenses.

124Because the parties had reached an agreement that does not conform with the provisions of the Federal Child Support Guidelines¹⁸ (the “Guidelines”), we must determine the application, if any, of section 15.1(5)(a) of the Divorce Act. Were there exigent financial circumstances which amount to “special provisions” that benefitted the children. As set out at paragraph 35(n) above, Father retained a disproportionately large share of the assets on separation even after making a payment of $50,000 to Mother. There is no mention of the balances, if any, owing on credit cards taken over by Father as part of the Separation Agreement. I draw the adverse inference that, because no balances are indicated, there is no corresponding disproportionate assumption of family debt taken on by Father associated with the credit cards. Therefore, there is no inherent benefit inuring to the children as a result of the apportionment of assets and liabilities between the separating spouses. Mother has not received any material benefit but has received well below Guidelines child support, and thus the children do not benefit in her household. There is no reason to fear that the “application of the applicable Guidelines would result in an amount of child support that is inequitable” given the property division contemplated by the Separation Agreement.

125The next exercise is to determine the parties’ incomes for support purposes.

126Somehow, throughout the lengthy course of this litigation, Father has managed to escape making consistent financial disclosure. He was obligated to file a Financial Statement with his Answer, dated September 7, 2016, which attached his Notices of Assessment for 2012, 2013 and 2014, along with a series of three paystubs dated in July and August of 2016. He has filed nothing since and, due likely to the truncation of his cross-examination at trial, he managed to avoid submitting his updated Financial Statement and Notices of Assessment since 2014 as exhibits. The Court is thus faced with the 2016 Financial Statement which is located in the Trial Record and with the following documents that should have been entered as exhibits at trial:

a. 2016 Notice of Reassessment showing income of $279,173 (CaseLines Pages A945-A947);

b. 2017 Notice of Reassessment showing income of $252,640 (CaseLines Pages A948-A950);

c. 2018 Notice of Assessment, missing the page(s) showing annual income (CaseLines Pages A951-A952);

d. 2019 Notice of Reassessment, missing the page(s) showing annual income (CaseLines Pages A953 – A954);

e. 2020 Notice of Assessment showing income of $303,007 (CaseLines Pages A955 – A957);

f. 2021 T4 statement issued by Grand Valley Fortifiers showing employment income of $102,411.35;

g. 2021 T4 statement issued by Loblaw Companies Limited showing employment income of $130,879.77; and

h. paystub issued by Loblaw Companies Limited for the pay period ending April 2, 2022 showing gross year-to-date pay of $76,653.37.

127The Court’s primary objective of dealing with cases justly requires that the issue of financial support for the Fernandes children be addressed using the best available evidence. These documents (or, frankly, an updated Financial Statement with all appropriate attachments) would have been best filed as separate exhibits at trial, but this was not done as a result of the chaotic nature of the attempts to ensure that Father’s evidence was before the Court. I would underscore that this chaos resulted from Father’s own choices not to participate at trial properly and fully, and that it is Father who failed to make fulsome financial disclosure in a timely fashion in accordance with the Family Law Rules.¹⁹ It has been said that non-disclosure is the cancer of family law²⁰ – it metastasizes to thwart the natural progression of the application of the law to the factual foundation that it has infected. To hamstring Mother’s application to update child support on the basis of Father’s non-disclosure would be to allow the cancer to take over.

128Father does not attach the above-listed documents to his written statement of evidence (Exhibit 101). The documents came to the Court’s attention either because they were uploaded by Mother to CaseLines and discussed in her evidence in chief, or because they were submitted by

paragraph 34.

Father through the Court Registrar together with his written statement of evidence. I find that all involved intended that these documents be entered into evidence through Father, and thus they should have been included with Exhibit 101, effectively as attachments to his statement of evidence. They are thus incorporated, nunc pro tunc, into Exhibit 101.

129In his written statement of evidence, Father attests as follows [sic]:

My income is grossly overstated in 2019 and 2020 due to a buyout from Loblaw when I was let go in Sept 2019.

My current income is 190,000 annually.

130As noted above, the Court is left without evidence for the years 2018 and 2019. The best evidence available is for the years 2016 and 2017, and thus an average of those two years’ incomes will be used for 2018 and 2019. The following calculation applies:

[$279,173 (2016) + $252,640 (2017)] ÷ 2

= $265,906.50

131Father’s 2020 income is set out on his Notice of Assessment, namely $303,007.

132Father’s 2021 income is the sum of the amounts indicated on the T4 statements, namely

$233,291.

133With respect to Father’s income for 2022, we have the paystub issued by Loblaw Companies Limited for the pay period ending April 2, 2022 showing gross year-to-date pay of

$76,653.37. If that amount is annualized, Father’s 2022 income would be $229,960.11, being

$76,653.37 ÷ 4 x 12. I note that this does not include any bonus income, as none is noted on the paystub. Father’s evidence is that he received a one-time payment in 2020 which inflated his income for that year. In order to fairly estimate Father’s 2022 income, therefore, I have taken the average of the years 2016, 2017 and 2021, as follows:

[$279,173 (2016) + $252,640 (2017) + $233,291 (2021)] ÷ 3

= $255,034.66

134To recap, then, Father’s annual incomes for the applicable years are:

2016

$279,173

2017

$252,640

2018

$265,906

2019

$265,906

2020

$303,007

2021

$233,291

2022

$255,035

135Mother admits that her income is not what she wants it to be, with the following figures being set out in her Financial Statement sworn at trial and its accompanying attachments: 2019 – ($1,331); 2020 – ($13,538); 2021 – ($17,065); and 2022 - $55,755.96. Mother asks that her income be attributed at $45,000.

136Largely due to the onslaught of the government’s response to the COVID-19 situation at the moment when she expanded her studio and found herself responsible for rent in two locations, Mother is still losing money. Father made much of this in cross-examination, and his position is that Mother’s imputed income should be $118,789 and that “with [her] certificate in RMT and degree in marketing she could be making much more money than losing money running a dance studio.” No evidence regarding Mother’s potential earning capacity as a full-time Registered Massage Therapist or entry-level marketing employee was tendered. Regrettably, Father appeared to misunderstand the analysis of Mother’s business finances, for example:

a. he did not appear to appreciate that Harmonized Sales Tax is a flow-through figure that is not attributed as income to a business;

b. he appeared to believe that Mother should include costume purchase funds as income, although Mother did not mark up any costume purchases for the dancers but simply acted as a conduit in placing orders; and

c. similarly, he was of the view that Mother was receiving income by collecting competition fees, which Mother clarified by attesting that dancers must register for the competitions through their studio rather than individually, and thus she was tasked, of necessity, with collecting and remitting competition fees.

137Even accounting for “add-backs” to Mother’s taxable income (loss) such as expensed cellphone and office supplies, Father did not successfully convince the Court that Mother in fact had an income, or standard of living commensurate with same, of greater than $45,000 in any of

the years 2016 through 2021. I find that Mother’s annual income for each of the years 2016 through 2021 should be imputed at $45,000, and that her annual income for 2022 is as set out on her Financial Statement, namely $55,756.

1. Retroactive Adjustment

138In her Application, Mother sought “child support for the children of the marriage, including special and extraordinary expenses, pursuant to Section 7 of the Child Support Guidelines, retroactive to such date as this court deems fit.”

139Mother’s Application was issued on February 10, 2015. There have, however, been so many fluctuations in the parenting schedule over the life of this litigation that to retroactively adjust child support to that date would not be a fair resolution. Further, the Court must be mindful of the significant impact that a large unpaid amount of child support may have on the children’s standard of living in Father’s household. It is undisputed that Father has two additional dependents (children from his current relationship). Father attested that he is looking for a new job and had an interview in Chicago during the Summer of 2022, although there was no evidence regarding the details of his continued employment with Loblaw Companies Limited. The parties agreed to a minimal amount of child support in the Separation Agreement (namely $500 monthly), although I am mindful of the manipulation and pressurization brought to bear upon Mother in connection with the signing of that document. Finally, it cannot be ignored that Father failed to make fulsome and timely financial disclosure, and that his income has been well over $200,000 consistently since 2016. Had the issue of proper child support based on Father’s actual income been addressed at any prior point in this litigation, Father would not find himself facing such a large arrears amount now. I must be mindful of the fact that it is Father, not the children, who has enjoyed the benefit of underpaying child support for the past seven years. Thus, taking into account all relevant factors, and noting particularly that child support is the right of Jordan and Reilly to equivalent standards of living in both households, I find that child support will be reviewed retroactive to January 1, 2016.

140The parties agree that the division of parenting time has been such that the children spent more than 40% of their time in the care of each parent until April 28, 2022, although the exact

details have fluctuated. There is one exception to this: Father attests that Jordan was in his care “for at least 320 days in 2019”. Although Mother’s evidence was that Father unilaterally overheld Jordan for much of the time he claims, I will give Father the benefit of the doubt. As this is not the appropriate case for a detailed analysis as was suggested in Contino v. Leonelli-Contino²¹, I will apply the mathematical set-off mandated by section 8 of the Guidelines to both the split parenting year of 2019 and the balance of the shared parenting time, with the following results:

Year & Parenting Arrangement

Father’s Income & Support Amount (monthly)

Mother’s Income & Support Amount (monthly)

Child Support (Set-Off)

2016 - shared

$279,173

$3,485

$45,000

$664

$2,821/month

x 12

= $33,852

Jan. – Nov. 2017 –

shared

$252,640

$3,182

$45,000

$664

$2,518/month

x 11

= $27,698

December, 2017²²

$252,640

$3,309

$45,000

$674

$2,635/month

x1

= $2,635

2018 – shared

$265,906

$3,468

$45,000

$674

$2,794/month

x12

= $33,528

2019 – Jordan with Father; Reilly shared

$265,906

$2,134

$45,000

$674

$1,460/month

x12

= $17,520

2020 – shared

$303,007

$3,913

$45,000

$674

$3,239/month

x 12

= $38,868

2021 – shared

$233,291

$3,076

$45,000

$674

$2,402/month

x 12

= $28,824

Jan. – Mar. 2022 –

shared

$255,035

$3,337

$55,756

$851

$2,486/month

x 3

= $7,458

TOTAL

(Calculated)

$190,383

LESS

(Amount Paid)

$500 paid monthly

x 75 months

($37,500)

NET OWING

(by Father to Mother)

$152,883

141Having regard to all of the circumstances and taking into account the concessions made in determining the parties’ incomes and Jordan’s residency for 2019 (all of which favour Father), I find that Father owes Mother arrears of monthly child support in the amount of $152,883 for the period ending April 30, 2022.

142With respect to the issue of special and extraordinary expense contributions, the parties agreed in the Separation Agreement that Father would fund all such expenses, contemplating specifically clothing, post-secondary educational expenses, activities, equipment and competition costs. The Separation Agreement confirms that the children were involved with dance, hockey, swimming, baseball, golf and piano at that time. The minimal quantum of child support was linked to Father’s payment of all such expenses, with the result that expenses would be divisible proportionately to income on default and monthly child support would “be open for review.” It is undisputed that Father refuses to pay Reilly’s dance expenses, taking the position that there should be no cost to her so long as she continues to dance at Mother’s studio. It is this position that he maintained at trial.

143Reilly is a gifted and dedicated dancer. She dances up to thirteen hours weekly on a regular basis, with additional time invested in preparation for competitions. She has been invited to attend specialized programs (“intensives”) and to compete internationally.

144Mother provided detailed calculations and supporting documentation for Reilly’s dance expenses for the years 2016 through to 2022. They can be broken out as follows:

a. Regular Class Fees: $20,478.66

$16,819.80 (2016 – 2021) + $3,658.86 (2022)

b. Competition Rehearsal Fees: $14,386.50

$10,137.50 (2016 – 2021) + $4,249 (2022)

c. Costumes and Clothing: $6,961.27

$5,765.22 (2016 – 2021) + $1,196.05 (2022)

d. Competition Entry Fees: $14,795.76

$11,246.58 (2016 – 2021) + $3,549.18 (2022)

145Section 1.1 of the Guidelines defines “extraordinary expenses” on the basis that, firstly, expenses exceed the amount that the incurring spouse can reasonably cover having regard to that spouse’s income and monthly child support OR, secondly, the court considers such expenses to be extraordinary having regard to these factors, the overall cost of the activity and “any special needs and talents of the child.” It is important to note that Father’s child support obligation for the period from January 1, 2016 through to April 30, 2022 has increased more than $24,000 annually on average, and that this amount will be recaptured by Mother in the Final Order.

146Over six seasons of dancing, the annual cost of the Regular Class Fees is roughly $3,400. In all of the circumstances, I do not find that the Regular Class Fees are “extraordinary expenses” that Mother cannot reasonably cover, now that she will be receiving proper child support for the periods in question. I pause here to note that this absorption of costs by her can also be seen as addressing any contribution to Jordan’s hockey expenses for which she might otherwise be responsible.

147Having said this, I find that, as a result of Reilly’s special talents, competition-related expenses, inclusive of costumes (both for studio recitals and for competitions) are “extraordinary expenses” pursuant to Section 7(1.1)(b) of the Guidelines. The total for the period 2016 – 2021 of these items is $27,149.30. The total for 2022 for these items is $8,994.23.

148As the expenses span a considerable length of time, and as it is not a reasonable apportionment of resources to itemize each expense and divide it proportionately based on an annual income comparison (particularly as the dance season runs along the academic year rather than the calendar year), I apply an average of the parties’ incomes to apportion the expenses from 2016 – 2021 and use the parties’ 2022 anticipated incomes to apportion the expenses for that year. The result is as follows:

Father’s average income 2016 – 2021: $266,653 Mother’s average income 2016 – 2021: $45,000 Father’s proportionate share of expenses (2016 - 2021):

$266,653 ÷ ($266,653 + $45,000) x 100% = 85.6%

Mother’s proportionate share of expenses (2016 - 2021):

$45,000 ÷ ($266,653 + $45,000) x 100% = 14.4%

Father’s income for 2022: $255,035 Mother’s income for 2022: $55,756

Father’s proportionate share of expenses (2022):

$255,035 ÷ ($255,035 + $55,756) x 100% = 82%

Mother’s proportionate share of expenses (2022):

$55,756 ÷ ($255,035 + $55,756) x 100% = 18%

149Therefore, Father’s outstanding contribution toward Reilly’s competition and costume expenses for 2016 – 2021 is 85.6% of $27,149.30, being $23,239.80. His outstanding contribution toward the same expenses for 2022 is 82% of $8,994.23, being $7,375.27.

150In total, Father owes Mother $183,498 for the period from January 1, 2016 through April 30, 2022, calculated as:

Adjustment to Child Support $152,883

• Reilly’s Competitive Dance Expenses (2016 – 2021) $23,240

• Reilly’s Competitive Dance Expenses (2022) $7,375

2. Go-Forward Child Support

151With respect to go-forward child support effective May 1, 2022, it is only Father’s income that determines monthly child support. Mother’s income continues to inform the apportionment of special and extraordinary expenses. For the reasons described above, I find that Father’s income for 2022 for child support purposes is $229,960, generating a monthly obligation of $3,037.

3. Go-Forward Special and Extraordinary Expenses

152The parties agree that Jordan should continue in his scheduled extra-curricular activities, namely hockey and golf. They further agree that Reilly should continue in her regular and competitive dance.

153For the reasons set out above, Reilly’s competition-related expenses, inclusive of costumes (both for studio recitals and for competitions) are “extraordinary expenses”. Reilly’s regular dance class and studio fees and basic related clothing will not be divisible between the parties but will be paid by Mother. To that I will add her reasonable travel expenses associated with competition and any costs associated with attendance at special invitational programs (“intensives”), to an annual maximum of $4,000.

154A reflexive, and similar, term will apply to Jordan’s hockey expenses such that regular fees and basic equipment will not be divisible between the parties but will be paid by Father. Jordan’s competition-related expenses, inclusive of any associated gear required for participation in a tournament (e.g. event-specific approved safety equipment or jerseys), are “extraordinary expenses.” To that I will add his reasonable travel expenses associated with competition and any costs associated with attendance at advanced training programs, to an annual maximum of $4,000. As there was no evidence that Jordan golfs competitively, all golf expenses will be borne by Father.

155As determined above, Father’s share of such expenses is 82% and Mother’s share is 18%, effective April 1, 2022.

C. Property Division per Separation Agreement

156Mother sought to amend her Application mid-trial to address a situation of which she had just become aware during the course of trial. Such a request is unusual but was granted for oral reasons given on September 9, 2022.

157The situation that arose relates to a rental property owned jointly by the parties at separation, municipally known as 99 Newport Drive, Cambridge. Paragraph 12(e) of the parties’ Separation Agreement addressed this asset, and reads as follows:

12(e) (i) The property at 99 Newport Drive, Cambridge, Ontario, (the “rental property”) is registered in the name of Rick and Autumn as joint tenants.

(ii) Autumn shall transfer to Rick all her right, title and interest in the rental property.

(iii) The cost of preparation and registration of such transfer shall be at Rick’s expense, and shall be completed within 15 days of the execution of this Agreement.

(iv) Upon being sold, the net proceeds shall be held in trust and will be used solely for the benefit of the children, as agreed by Rick and Autumn. Failing agreement, the parties shall resort to the Issue Resolution paragraph of this agreement.

(v) Until sold, Rick shall be responsible for all costs relating to the rental property, including mortgage, taxes, insurance, utilities, maintenance and repairs. He shall be responsible for dealing with the tenants and collecting rent.

158During his cross-examination on September 6, 2022, Father admitted that the rental property had been sold sometime in 2021. He provided the name of the law firm that acted on the sale transaction and attested that the proceeds of sale were not being held in trust for the children, that his intention was to use the said proceeds to buy another property for the benefit of the children, and that “the agreement is not court ordered, and I have every intention to continue to support my children.” He undertook to provide the reporting letter on the sale transaction to Mother and the Court on September 7, 2022 but failed to attend Court to conclude his evidence on that date or thereafter.

159There is no question that, although it is not specifically delineated in the Separation Agreement, Father was obligated to disclose to Mother when the rental property had been sold. Paragraph 12(e), (iv) contemplates that the proceeds would be addressed “as agreed by Rick and Autumn” – obviously, one cannot reach an agreement without communication and disclosure. No information was available to Mother or to the Court regarding the details of the sale transaction. The evidence before the Court is that contrary to the Separation Agreement, the proceeds of sale are not being held in trust for the children.

160As a result of Father’s obstructionist behaviour regarding the net proceeds of sale of the rental property, he cannot be trusted to manage those funds for the children’s benefit. In the absence of a defined figure, it is difficult for the Court to properly address this issue. The Final

Order will, nonetheless, include the requirement that the net proceeds of sale be paid over to Mother, to be held in trust for the benefit of the children until each of them reaches the age of eighteen (18). Paragraphs 1 – 3 of the Endorsement of September 9, 2022 will thus be incorporated (with the adjustment that funds to be managed by Mother as the trustee) into the Final Order.

161It is likely that Mother will have to bring a non-party records motion seeking disclosure of the trust ledger statement from Pavey Law, the Cambridge real estate firm that Father attested acted on the sale transaction. That motion can be brought on notice to the law firm but without notice to Father, to be heard before me if convenient, but I am not seizing myself of same.

D. Restraining Order(s)

162Mother seeks an Order that restrains Father from communicating with her in any way other than through Our Family Wizard and from attending within 200 metres of her residence, place of work or employment, or any location where he knows her to be. She further seeks an Order restraining Father from communicating with her “business associates, clients, dance parents and/or family members.”

163I will address the latter request first, as the analysis is simplest. Suffice it to say that the list of potential individuals with whom Father is not to communicate is overbroad. Father could innocently communicate with a “dance parent” without knowing that he has done so by virtue of an unrelated commercial interaction (e.g. the parent of a dance student works at a restaurant that he attends). Further, because of the breadth of the category, a situation could readily arise whereby Father’s legitimate communication interests would be unnecessarily curtailed (e.g. Jordan’s teacher decides to enroll his or her child at Mother’s studio, with the result that Father can no longer communicate with Jordan’s teacher). Finally, there is no authority for granting a civil restraining order in favour of unnamed individuals who are not seeking its protection. Section 35 of the Children’s Law Reform Act and Section 46 of the Family Law Act each contemplate that the Applicant is the individual seeking protection. That individual must demonstrate to the Court his or her need for an order restraining the Respondent (in this case, Father).

164Regarding Mother’s request to limit communication with Father and to restrain him from presenting himself within 200 metres of her residence, place of employment or other known

location, either of Section 35 of the Children’s Law Reform Act and Section 46 of the Family Law Act could be applied. They are functionally identical.

165Not long ago, Mandhane, J. set out the test for a Restraining Order in the family law context concisely and with precision.²³ The factors are as follows:

(a) there must be reasonable grounds for the applicant party to fear for his or her physical or psychological safety or that of a child in his or her care;

(b) the standard of “reasonable grounds” is lower than the civil “balance of probabilities” standard;

(c) in assessing the applicant party’s subjective fear, the order must only be granted where such fear has a “legitimate basis” such that there is a connection or association between the allegedly-frightening behaviours and the subjective fear; and

(d) the responding party’s liberty interest requires that such sanctions not be imposed lightly.

166Appreciating the challenges of this situation, I must assess the request for a Restraining Order separately from the other considerations in the parenting analysis. The test is different, and narrower, in finding support for a Restraining Order than exists to substantiate family violence (as defined broadly by the Divorce Act). There is no clear evidence that Mother fears for her safety, or that of either of the children, at this time. Father’s behaviours have been irascible and unpredictable, but there is no evidence that he poses a credible threat of imminent harm to Mother or to either child. It is essential that Courts impose restrictions on Canadians’ liberties only when required to do so. Here, I am not certain that Mother in fact has a subjective fear of Father. If she does, I do not find that such a fear is sufficiently connected to any current behaviour such that it can be said to have a “legitimate basis” at law.

167Mother’s request for Restraining Orders is denied.

E. Costs

168Other than her request for a Restraining Order, Mother was wholly successful in this trial. Parenting time sought by her at the outset of trial was a return to the “week about” plan that had been in place in 2021. At the conclusion of the trial, her evidence was that the children (and particularly Jordan) were doing well under the terms of the Temporary, Without Prejudice Order (i.e. in Father’s care on alternate weekends). Mother was careful in her closing submissions to focus on decision-making for the children and seeking a “clear plan” on parenting time that would allow the family to move forward. Costs of this trial shall therefore be addressed on the basis that Mother was the successful party. Father’s behaviour at the trial was unreasonable in his attempts to delay its progress and in his offensive line of sexualized questions posed to Mother. Guided by these conclusions, I will provide a subsequent Endorsement as to the quantum of costs payable by Father to Mother upon receipt of submissions on the following timeline:

a. Mother shall serve and submit to the court a detailed Bill of Costs, together with copies of any applicable Offers to Settle and proof of service thereof, by February 10, 2023.

b. Father shall serve and submit to the court his responding submissions, not to exceed 5 pages in length, hyperlinking citations to any relevant caselaw, by February 24, 2023.

c. Mother shall serve and submit to the court any reply submissions, not to exceed 3 pages in length, hyperlinking citations to any relevant caselaw, by March 3, 2023.

d. There shall be no extensions to these deadlines. If a party fails to meet these deadlines, there shall be no costs payable to that party, although costs may still be awarded against that party.

e. Submissions are to be directed to my judicial assistant at Mona.Goodwin@ontario.ca and Kitchener.SCJJA@ontario.ca. It is imperative that it is indicated in the subject line of the covering email: (1) the court file number;

(2) that these are costs submissions; and (3) that they are being sent to the attention of Justice Breithaupt Smith.

f. The parties shall further ensure their costs submissions are filed with the Court.

169Final Order to issue in accordance with draft signed today, as prepared by the Court and provided to the parties separately.

J. Breithaupt Smith, J.

Date: January 25, 2023

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

16.1 (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by

(a) either or both spouses; or

(b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.

(2) The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection.

(3) A person described in paragraph (1)(b) may make an application under subsection

(1) or (2) only with leave of the court.

(4) The court may, in the order,

(a) allocate parenting time in accordance with section 16.2;

(b) allocate decision-making responsibility in accordance with section 16.3;

(c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and

(d) provide for any other matter that the court considers appropriate.

(5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.

(6) Subject to provincial law, the order may direct the parties to attend a family dispute resolution process.

(7) The order may authorize or prohibit the relocation of the child.

(8) The order may require that parenting time or the transfer of the child from one person to another be supervised.

(9) The order may prohibit the removal of a child from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.

16.2 (1) Parenting time may be allocated by way of a schedule.

(2) Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(a) has exclusive authority to make, during that time, day-to- day decisions affecting the child.

16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.

16.4 Unless the court orders otherwise, any person to whom parenting time or decision- making responsibility has been allocated is entitled to request from another person to whom parenting time or decision-making responsibility has been allocated information about the child’s well-being, including in respect of their health and education, or from any other person who is likely to have such information, and to be given such information by those persons subject to any applicable laws.

16.6 (1) The court shall include in a parenting order or a contact order, as the case may be, any parenting plan submitted by the parties unless, in the opinion of the court, it is not in the best interests of the child to do so, in which case the court may make any modifications to the plan that it considers appropriate and include it in the order.

(2) In subsection (1), parenting plan means a document or part of a document that contains the elements relating to parenting time, decision-making responsibility or contact to which the parties agree.

Schedule "B" to Reasons for Judgment at Trial per Breithaupt Smith, J.

Date April 28, 2022

DURING TRIAL

Applicant(s): _ Autumn Marie FERNANDES _ _ _ _ _ _ Email: _ _onemovement@outlook.com _

Respondent(s): _ _ Richard Domnic FERNANDES Email: _ _rickfernandes133@gmail.com _ _ _ _ _

Present Present Duty counsel Present Present

Duty Counsel

Order to go in accordance with minutes of settlement or consent filed.

1This Endorsement is with respect to today’s intended proceedings. Where there is any discrepancy between the overview of my determination of various issues given orally at trial and a written Endorsement on such issues, the written Endorsement governs. This written Endorsement includes the following additional sentence at paragraph [6] 4. in response to a question asked by Ms. Fernandes: “The children shall continue to attend their scheduled activities, including any tournaments and/or competitions, while in either parent’s care.”

2Yesterday, Mr. Fernandes asked that this trial be adjourned indefinitely on the basis that the stress of attendance had caused him to have suicidal thoughts. Based on the fact that he attended to his parenting and workplace duties between Saturday, April 23, 2022 and Tuesday, April 26, 2022, combined with his ability to selectively and carefully respond to the questions posed to him regarding his overall situation in Court yesterday, I concluded that he was perfectly capable of actively participating in the events of a trial. The adjournment request was denied.

3Mr. Fernandes then asked for leave to submit his evidence in chief in written form, which was granted, and his document was affirmed and entered as Exhibit

101. Rather than commencing his cross-examination yesterday, and despite Ms. Fernandes indicating that she was prepared to start and was concerned that he may not attend today, I granted Mr. Fernandes’ request that his cross- examination start this morning.

4I am now advised by the Trial Co-ordination Office that Mr. Fernandes has sent an email indicating that he has admitted himself to Cambridge Memorial Hospital for mental health reasons. He indicates that he is unable to proceed with this trial at this time. That email was forwarded to me by the Trial Co- ordinator and is attached as Appendix “A” hereto. It will further be entered into evidence as Exhibit 102.

5It is in the best interests of the parties’ two children, Reilly and Jordan, for a temporary order to be made regarding decision-making and parenting time on a without prejudice basis pending the continuation of the trial. Mr. Fernandes,

being in the midst of a deteriorating mental health situation, is not in a position to care for them at this time. Based on the evidence presented by Ms. Fernandes and by the Participant Expert witnesses, and having reviewed Mr. Fernandes’ evidence in chief (submitted in writing), it is clear that Ms. Fernandes has consistently supported the children’s relationship with their father (and his family), that she will encourage them (being teenagers) to make decisions regarding their medical care and education in a manner that is age-appropriate and provides them with agency, and that she has a loving and stable household ready for them in this time of crisis.

6I therefore order, as a condition of the adjournment of the trial and on a without prejudice basis, that:

1. The children, Reilly Marie Fernandes born August 25, 2006 and Jordan Lucas Fernandes born October 18, 2008, (the “children”) will be primarily resident with the Applicant Mother, Autumn Fernandes, effective immediately, and she shall have sole decision-making authority for them until further Order of the Court.

2. The parties shall communicate exclusively via Our Family Wizard, and in that regard the Respondent Father, Richard Domnic Fernandes, is encouraged to include his fiancée, Ms. Jennifer Ellis, as a contact in that program so that she may be kept apprised of all information on his behalf. The Applicant Mother, Autumn Fernandes, shall enter all details with respect to any appointments or activities for either child into the calendar feature of the program and shall keep such calendar feature updated at all times.

3. Any sports or activity equipment used by either child shall be collected by the Applicant Mother, Autumn Fernandes from the residence of the Respondent Father, Richard Domnic Fernandes, with the assistance of Waterloo Regional Police Services at such exact time as can be arranged with that agency.

4. The Applicant Mother, Autumn Fernandes, and/or her agent (i.e. family member or Ms. Dana Sherriff), shall take both children to and from their activities. The children shall continue to attend their scheduled activities, including any tournaments and/or competitions, while in either parent’s care. Ms. Fernandes may, in her discretion, authorize the Respondent Father, Richard Domnic Fernandes, and/or his agent (i.e. family member or Ms. Jennifer Ellis) to assist her in this regard. Such arrangements shall be confirmed in writing via Our Family Wizard.

5. In order to maintain their connection with their paternal family, both children shall reside in the home of the Respondent Father, Richard

Domnic Fernandes, on alternate weekends from Thursday after school or at 5:00 p.m. through to Sunday at 8:00 p.m., commencing Thursday, May 5, 2022.

6. The Applicant Mother, Autumn Fernandes, and/or her agent, shall provide all transportation for the children at the beginning and end of the alternate weekends with their paternal family. Any extension of such alternate weekends will be in the discretion of the Applicant Mother, Autumn Fernandes, and will be confirmed in writing via Our Family Wizard.

7. Having regard to the ages of the children, neither party shall be obligated to contact the other in the event of any period during which he or she is not available to provide care for either child. For clarity, the children shall be in the care of the Respondent Father or paternal family on alternate weekends as set out herein and in the care of the Applicant Mother or maternal family at all other times except as otherwise agreed upon in advance in writing via Our Family Wizard.

8. Pursuant to section 36 of the Children’s Law Reform Act, the police force having jurisdiction in any area where it appears that the children, Reilly Marie Fernandes born August 25, 2006 and Jordan Lucas Fernandes born October 18, 2008, may be, shall locate, apprehend and deliver the children to the person having care and control over them in accordance with the terms of this Order.

9. Trial is adjourned to be spoken to at Trial Scheduling Court/Speak To Court on Monday, August 29, 2022 for the four-week sittings commencing Tuesday, September 6, 2022. Trial continuation to thereafter be scheduled before Breithaupt Smith, J. for not more than four additional days. Both parties are ordered to attend at Trial Scheduling Court/Speak To Court on Monday, August 29, 2022 at such exact time as is provided by the Trial Co-ordination Office, who shall communicate with them by email to:

a. The Applicant, Autumn Fernandes, at: onemovement@outlook.com

b. The Respondent, Richard Fernandes, at: rickfernandes133@gmail.com

10. Notwithstanding Rule 25 of the Family Law Rules, this endorsement is effective from the date it was made and enforceable as an order of the court without the need for an order to be prepared or approved by the parties and then issued by the court. No formal order is necessary unless

an appeal or a motion for leave is brought, or alternatively unless one is necessary for enforcement by a third party.

11. In the event that a formal order is prepared, approval of the draft by self- represented parties is waived.

Madam Justice J. BREITHAUPT SMITH

If you require assistance using the Family Submissions Online Portal: Telephone: 1-800-980-4962 Email: FamilyClaimsOnline@ontario.ca. If you require assistance using CaseLines:

Telephone: 1-800-980-4962 Email: info.CaseLines@ontario.ca

Duty Counsel can be reached at: 519-578-4561

Appendix "A" to the Endorsement of Breithaupt Smith, J. dated April 28, 2022

Breithaupt Smith, Madam Justice Jennifer (SCJ)

Subject: RE: Fernandes vs. Fernandes

From: Rick Fernandes <rickfernandes133@gmail.com>

Sent: April 28, 2022 8:50 AM

To: Autumn Fernandes <onemovement@outlook.com>; Cox, Melissa (JUD) <Melissa.Cox@ontario.ca>; Ubia, Eno (MAG)

<Eno.Ubia@ontario.ca>

Subject: Fernandes vs. Fernandes

CAUTION -- EXTERNAL E-MAIL - Do not click links or open attachments unless you recognize the sender.

Hello, unfortunately I can’t be on the zoom call for the trial this morning and wondering if this email can be sent to Justice Smith.

Hello Justice Smith,

I spent last night at Cambridge Memorial hospital, and am still here being assessed, as I was scared I was going to harm myself. I had a bottle of Advil that I was ready to take until I called the IMPACT 24/7 hotline. They told me it was best to go to the hospital if I didnt feel safe in my home. I appreciate and respect your endorsement from yesterday regarding my request to adjourn the trial but I have been suffering from depression for many years and living with

it. This trial, while I appreciate is hard on a lot people, triggered my depression and made me have suicidal thoughts.

I was unofficially diagnosed with high functioning depression by one of my counselors years ago as I am able to function in a “normal” manner while suffering inside. My mother tried to commit suicide numerous times, many times in front of me, when I was a child and then as an adult and as recently as last year. She is diagnosed with depression which I believe is hereditary. I have never gotten the proper help and now I realize I need it. Even though you may believe I am mentally sound, I pushed through the first two weeks of trial, not sleeping or eating, until it caught up to me and my mental state deteriorated due to my suicidal thoughts. I was functioning on the outside(going to work, watching my daughter dance, taking my son to his activities) but suffering on the inside.

As mentioned the police came to my house on Monday. Their names are Constable T. Ambrose and Constable L. Escobar. They were concerned for my safely so they called the IMPACT team with CMHA and the Waterloo Regional Police Service. Tammy Simms from CMHA came to talk to me for 30-40 min.

As also mentioned I have been trying to make an appointment with my family Doctor(Dr. Sherif Mikhail) and had to cancel an appointment last week due to the trial. I have an appointment with him today at 10:20am that I believe is necessary so I can get better. I can forward you his assessment if you wish. While I appreciate the applicants urgency to have this trial I would like to remind the courts that she delayed this trial for almost 5 years. Her statement that there

1

needs to be an urgent decision on Sole decision making is unwarranted as we have been making decisions for the children for the past 2 years with no communication at all. They are now teenagers and are able to make a lot of decisions on their own. I suggest all medical emergency decisions are based on the Doctors recommendations in the interim.

I want to defend myself and my children being in the best mental state possible. I am again asking for an adjournment based on me being in the hospital last night and not being mentally stable due to my suicidal thoughts. I am going to get the help I need to so I can resume the trial and defend myself and my children. Unfortunately I am unable to do that right now

I apologize for all the delays in this trial but I need to take care of myself at this time so I can be the best father to Reilly and Jordan as possible.

I realize Ms. Fernandes will try to use this against me in trial but I have to do what’s best for my family now.

Regards,

Richard Fernandes

This email message is confidential, may be legally privileged and is intended for the exclusive use of the addressee. If you received this message in error or are not the intended recipient, you should destroy the email message and any attachments or copies, and you are prohibited from retaining, distributing, disclosing or using any information contained. Please inform us of the delivery error by return email. Thank you for your cooperation.

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2

COURT FILE NO.: FC-15-FS-49853

DATE: 2023/01/25

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

AUTUMN MARIE FERNANDES

Applicant

– and –

Footnotes

1. 1The Court did not sit on two business days during that period due to Good Friday and Easter Monday.
2. 2Ashmore v. Corp. of Lloyd’s, [1992] 2 All E.R. 486 (H.L.) at 488.
3. 3The rationale for this brief review of the parties’ property division at separation is two-fold:
4. 4The details of that complaint were not raised in evidence; the Law Society of Ontario (“LSO”) dismissed the complaint as a result of internal review, without any response from Ms. Klodner having been necessary. Ms. Klodner attested that she became aware of the complaint after the LSO closed its file.
5. 5Importantly, the Our Family Wizard use appears at paragraph 5 of the Minutes of Settlement submitted to Justice Walters on December 23, 2020. This is thus another example of Father’s ungovernable approach to this litigation – he cannot be relied upon to follow through on his own promises.
6. 6Note that Father declined to call any such witnesses, despite having been advised by the Court that a failure to call a witness with knowledge of facts relating to a disputed point could result in an adverse inference that the allegedly- corroborating witness would not actually support his evidence on that point.
7. 72019 ONSC 5915 at paragraphs 55, 56 & 58.
8. 8Section 16.5 addresses “Contact Orders” between children and non-spouses (such as extended relatives) and sections 16.7 and onward relate to residential moves and relocations.
9. 9Omitted from the Reasons submitted for publication.
10. 10Note that the Divorce Act, in its focused application to married parents and their children, uses the term “spouse”. I have substituted the word “parent” to reflect each litigant’s role vis-à-vis the children.
11. 11The delay in releasing these Reasons since the final day of trial – which occurred on September 9, 2022, is a regrettable reflection of the extreme volume of work seen by our Family Court system in Ontario.
12. 12The evidence was not clear as to Dr. Norris’ given name or his/her exact specialization, i.e. whether a paediatrician or a paediatric psychiatrist.
13. 13Father entered into a Peace Bond on August 27, 2020 which continued for one year. Further details are set out under “Family Violence” below.
14. 14Mother’s evidence is that she has had constant numbness and tingling on the left side of her face and down her left arm, and that (as of April 2022) she was under investigation by her neurologist for demylination of her spinal cord. She has been medically exempted from further doses.
15. 15I note here that Father chose to call no witnesses, but Maternal Grandfather and Mother both attested to positive relationships with Paternal Grandparents and other paternal family members, and I infer from that evidence that the children also have their own strong and positive connections with paternal family.
16. 16Father submitted his evidence in chief by way of a 13-page typed document that he affirmed to be true on April 27, 2022.
17. 17The Final Order will be provided to the parties but is omitted from these Reasons for brevity.
18. 18SOR/97-175, as am.
19. 19Recall that Mother, as the Applicant, had only Father’s 2016 Financial Statement as disclosure up to the date when she prepared the Trial Record in early 2022.
20. 20Leitch v. Novac, 2020 ONCA 257, at paragraph 44. referencing Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920 at
21. 212005 SCC 63 (S.C.C.).
22. 22The table amounts mandated by the Federal Child Support Guidelines were amended on November 22, 2017.
23. 23At paragraphs 28 through 30 of J.K. v. R.K., 2021 ONSC 1136.