minicounsel

Court File No.: FC288/20
Date: January 14, 2025

Parties

Between:
Mei Yee Lau
Applicant
Represented by Genevieve M. Samuels

And:
Wing Hong Tao
Respondent
Represented by Nasar Iqbal

Heard: October 7, 8, 9, 10, 11, 15, 16, 17, 18, 21, 22, 2024 and written submissions December 16, 2024

Reasons for Judgment
B. Tobin

Introduction

1The parties were able to resolve a number of significant issues arising from their marriage and separation, including decision-making responsibility and a parenting time plan for holidays and special occasions.

2In this trial the parties asked the court to address the many issues they were not able to resolve.

3The central issues raised were the regular parenting time schedule, child support, and whether the applicant owned property on the date of separation that could be excluded from the calculation of her net family property.

4The parties separated after approximately five years of marriage. They do not agree on the date of separation.

5They are the parents of two children and agreed to share decision-making responsibility and special occasion and holiday parenting time.

6The applicant (“mother”) wants to remain the children's primary caregiver while the respondent (“father”) wants shared and equal parenting time.

7The parties agree that whatever parenting time schedule is ordered, the father will have the children in his care for more than 40% over the course of a year. What they do not agree upon is the amount of the mother's income for the purpose of determining her child support obligation.

8Regarding property issues, the mother claims that a significant amount of her assets held at the date of separation can be traced to gifts she received from her parents (sometimes referred to as the maternal grandparents) and thus are to be excluded from the calculation of her net family property. The husband claims the wife has failed to prove these exclusions.

9All issues were fully canvassed by the parties during this 11-day family law trial.

Background Facts

10The following is a brief outline of facts relating to the parties’ relationship, children, and arrival in Canada. Additional relevant facts will be set out in relation to the issues raised in this case.

11The parties met in 2011 in Edinburgh where the mother was earning her Masters degree in nursing. The father earned his Master of Science in social anthropology from the same university attended by the mother. The mother and the father began their relationship in 2013 while living in Hong Kong.

12On December 27, 2014, the parties married in Bali, Indonesia.

13After they married, the parties returned to Hong Kong. The mother was then employed as a nurse.

14The parties' first child, O, was born in 2015.

15After considering their circumstances and prospects in Hong Kong, the parties eventually agreed that they would move from there. They applied to immigrate to Canada. Their application was accepted in late 2017 or early 2018.

16On June 4, 2018, the parties and O landed in Canada. They began living in London on July 20, 2018. Shortly after their arrival in London, they purchased a home. The transaction closed on August 20, 2018.

17Soon after arriving, both parties were able to obtain employment. The father worked as a seasonal stocker at a bookstore. He worked early morning hours. The mother obtained a retail sales position at a store in a mall and worked afternoon and evening hours. This allowed the parties to manage their childcare for O.

18In the fall of 2018, the mother became pregnant with the parties’ second child. By January 2019, the mother was not able to continue with her employment because of complications with her pregnancy. After she left this employment, the mother studied for the necessary exams and eventually qualified as a nurse able to work in Ontario.

19Also in January 2019, the father began working as an intern for the City of London. Since January 13, 2020, the father has been a permanent full-time coordinator of administration and communication for a community neighbourhood resource centre in London.

20The parties’ second child, C, was born in 2019.

21By the fall of 2019, the parties experienced matrimonial difficulties. Some counselling was tried but it was not successful.

22On December 24, 2019, the father left the parties’ matrimonial home.

23On January 1, 2020, the mother and children went to Halifax for a visit with a friend of hers. The father then returned to the matrimonial home.

24When the mother and children returned to London from Halifax on January 20, 2020, they did not return to the matrimonial home.

The Court Proceedings

25These proceedings were started by the mother by application issued March 12, 2020.

26While this case has been ongoing, the parties were before the court a number of times to address the father’s parenting time, which school O would attend, the sale of the matrimonial home, the release of records from the Children’s Aid Society (“CAS”), and the mother’s request to travel to Hong Kong with the children.

27The father brought a number of motions to try and have his parenting time expanded.

28This case has been on the trial list since January 2023.

29Justice Sah conducted several settlement conferences and as a result the parties were able to resolve many issues arising from their separation.

30By order of Justice Sah dated March 2, 2023, which gave effect to final partial minutes of settlement, the parties resolved all parenting issues but one. The only parenting order issue the parties put before the court in this trial was the weekly non-holiday parenting time plan. The parties refer to this as “the regular parenting schedule.”

[31] The order of Justice Sah deals with:

Decision-making responsibility; it is joint with the mother having final say with respect to medical issues and the father having final say with respect to dental issues. The parties are to be guided by the advice of healthcare providers.
The children’s education and religious activities.
Extracurricular activities.
The right to receive information regarding the children.
Travel, passports, and citizenship.
Communication between the parties.
Telephone and video contact.
Transporting the children.
Change in the party’s respective place of residence.
Dispute resolution.
Holiday parenting time.
Pick-up and drop-off locations.

32By the time the trial started, the parties also agreed on many property issues and arrears of child support.

The Issues

33While the parties were able to resolve many issues arising from their separation, the following issues were argued at trial:

Parenting

What parenting time plan is in the children’s best interests?

Property 2. What was the date of separation? 3. What was the amount of the father’s indebtedness to the paternal grandmother on the date of separation? 4. Is the mother entitled to exclude the value of certain property from the calculation of her net family property? 5. What was the amount of the mother’s renovation debt owing to the maternal grandparents on the date of separation? 6. How are RESPs to be accounted for in the calculation of the parties’ respective net family properties? 7. What is the amount of the equalization payment due and to whom is it owed? 8. What are the post-equalization adjustments? 9. How is certain personal property to be shared or accounted for by the parties?

Child Support 10. What income, if any, should be imputed to the mother? 11. What amount of child support should be ordered?

Credibility

34The evidence given by the applicant and the maternal grandparents, and the respondent and the paternal grandmother was, for the most part, consistent. However, with respect to some parenting issues, the parties and their witnesses gave contradictory evidence. Also, with respect to the gift and loan issues, the respondent challenges the applicant and the maternal grandparents’ evidence. He argues that there was no, or there was insufficient, corroborating documentary evidence offered in support of their evidence.

35These submissions require the court to consider the credibility of the parties and their witnesses.

36With credibility having been put in issue, the court must consider the veracity and reliability of the evidence given.

37Credibility has to do with a witness’ veracity, that is, their willingness to tell the truth as they believe it be.

38Reliability has to do with the accuracy of the evidence given.

39The applicant cited M.A.B. v. M.G.C., 2022 ONSC 7207, paras. 48-49, as instructive for the court in assessing credibility. These paragraphs helpfully, and concisely, outline the legal principles the court is to take into account when assessing the credibility of a witness.

40Having regard to M.A.B., the court is instructed not to make a credibility assessment in isolation but rather on a consideration of the totality of the evidence. The assessment of credibility is not a scientific process and involves a consideration of many relevant factors.

41The court may accept some, all, or none of a witness’ evidence. As well, the court can attach different weight to different parts of the witness’ evidence.

42The mother gave her evidence in a candid, straightforward and thoughtful manner. She answered questions put to her directly. She did not try to deflect those questions that brought out unhelpful or unflattering evidence pertaining to her. The mother was not seriously shaken during counsel’s searching cross-examination. I find the mother to be a credible and reliable witness.

43The evidence given by the maternal grandparents dealt primarily with property issues. Both were able to clearly state what they recalled about various loans and gifts and readily acknowledged what they could not recall.

44The father’s evidence was, in many respects, given in a straightforward, consistent, and believable manner. He was able to recall many specifics in the evidence. However, his answers, especially in relation to parenting, were at times argumentative, non-responsive or self-serving.

45The paternal grandmother was clearly aligned with the father. For example, she was asked, in cross examination, whether the mother had ever spoken to her during the marriage about the father physically disciplining the children. She was also asked whether the mother had ever spoken to her about specific incidents of discipline engaged in by the father. The maternal grandmother responded that she had not. However, a WhatsApp exchange between the mother and paternal grandmother indicated otherwise. Father’s counsel tried to explain away the contradiction by submitting that the paternal grandmother had been misled because the questions asked were about conversations had during the marriage and not if they ever took place. With respect, only the first question asked in the relevant series of questions related to events during the marriage. The balance of questions was predicated on whether a conversation ever happened. I am not convinced that the paternal grandmother was misled as submitted.

46In summary, there are good reasons to accept some of the evidence relied upon by the father and to give less weight to other of his evidence. Findings of facts necessary for the determination of the issues in this case will be considered individually and without a predetermination of who is more credible and reliable.

Issue #1: What Parenting Time Plan Is in the Best Interests of the Children?