REPORTS of FAMILY LAW Seventh Series/Septi`Eme S´Erie Recueil De Jurisprudence En Droit De La Famille VOLUME 75 (Cited 75 R.F.L

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REPORTS OF FAMILY LAW Seventh Series/Septième série Recueil de jurisprudence en droit de la famille VOLUME 75 (Cited 75 R.F.L. (7th)) EDITOR-IN-CHIEF/REDACTEUR´ EN CHEF Philip Epstein, Q.C., L.S.M. Epstein Cole LLP, Toronto, Ontario ASSOCIATE EDITORS/REDACTEURS´ ADJOINTS Aaron Franks, B.COMM., LL.B., M.B.A. Melanie Kraft, LL.B. Roslyn Tsao, LL.B. Ilana Zylberman, LL.B. Epstein Cole LLP, Toronto, Ontario David C. Day, Q.C. E.F. Anthony Merchant, Q.C., B.A., Lewis, Day LL.B., D.ADMIN. St. John’s, Newfoundland Merchant Law Group Regina, Saskatchewan Donald M. Hendy, B.C.L. Harold Niman, B.A., LL.B. Hendy, Greenberg Niman Zemans Gelgoot Montréal, Québec Toronto, Ontario Marie L. Gordon, Q.C. Andrew J. Freedman, CA•IFA, Gordon Zwaenepoel CBV, ASA Edmonton, Alberta Duff & Phelps Toronto, Ontario EDITORIAL STAFF/REDACTION´ Cheryl L. McPherson, B.A.(HONS.) Andrea Benjamin, M.A., J.D. Director, Primary Content Operations Product Development Manager Nicole Ross, B.A., LL.B. Julia Fischer, B.A.(HONS.), LL.B. Supervisor, Legal Writing Supervisor, Legal Writing Martin-Fran¸cois Parent, LL.B., LL.M., Barbara Roberts, B.A.(HONS.), LL.B. DEA (PARIS II) Lead Legal Writer Bilingual Legal Writer Bridget Mak, B.A.(HONS.), J.D. Annie Chan, B.A. Senior Legal Writer Content Editor REPORTS OF FAMILY LAW, a national series of topical law reports, is Recueil de jurisprudence en droit de la famille, une série nationale de published twice monthly. Subscription rate is $448.00 per bound volume in- recueils de jurisprudence, est publié deux fois par mois. L’abonnement est de cluding parts. 448 $ par volume relié incluant les fascicules.

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[Indexed as: Yin v. Liu] Xin He Yin, Respondent (Claimant) and Jinsong Liu a.k.a. Jin Song Liu, Appellant (Respondent) British Columbia Court of Appeal Docket: Vancouver CA42594 2016 BCCA 153 Saunders, Neilson, MacKenzie JJ.A. Heard: April 6, 2016 Judgment: April 6, 2016 Family law –––– Domestic contracts and settlements — Validity — Formal validity — Formation of contract –––– Parties were involved in litigation regarding family law issues — Parties resolved most issues at settlement conference, but did not resolve husband’s right to claim indemnity against wife in action that had been commenced against him in China — Wife’s counsel sent husband’s counsel draft consent order that included indemnity clause, but wording of indemnity clause was not agreed upon — Judge dismissed husband’s application for declaration that settlement of all issues was reached — Judge found that issue of indemnity clause was important to parties — Judge held that exchange of drafts between counsel and discussions in court did not result in agreement — Discussion of different possible formulations of indemnity clauses revealed, at most, agreement to agree — Judge held that, whether binding agreement was reached did not depend on subjective views of parties, but on what reasonable third-party observer would conclude — Husband appealed — Appeal dismissed — There was no basis to interfere with order — Judge concluded that husband did not accept wife’s offered indemnity clause, which accorded with proposition that counter offer took original offer away — Throughout negotiations, husband demonstrated importance of indemnity term — It could not be said that essence of term was agreed once wife proposed certain language because husband proposed different version of clause, making his new version current offer. 2 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

Cases considered by Saunders J.A.: Beck v. Bachman (2014), 2014 BCSC 1996, 2014 CarswellBC 3150, 51 R.F.L. (7th) 357 (B.C. S.C.) — considered

APPEAL by husband from judgment reported at Yin v. Liu (2015), 2015 BCSC 277, 2015 CarswellBC 435, 57 R.F.L. (7th) 289 (B.C. S.C.), dismissing husband’s application for declaration that parties entered into binding settlement of all issues in this action.

R. Van Der Mark, for Appellant A.E. Thiele, for Respondent

Saunders J.A. (orally):

1 This appeal concerns the formation of a settlement agreement in family litigation. Although the appellant contests the validity of the marriage, I will refer to the parties as the husband and wife for convenience. 2 The appellant, who is the husband, appeals from dismissal of his application for a declaration that the parties entered into a binding settlement of all issues in this action. He seeks an order declaring that there is a binding and enforceable agreement settling all matters in the action and an order staying proceedings in the Supreme Court of British Columbia. 3 On the breakdown of the parties’ relationship, the parties engaged in extensive settlement discussions to resolve a number of litigation issues. Significant assets are at stake, including assets in China. Complicating the settlement has been civil proceedings in China related to the wife’s commercial leasing of a property in China that was in her husband’s name. 4 In early 2014 the parties tried to reach a settlement, anticipating that the settlement agreement if reached would be reflected in a consent order setting out the agreed terms in respect to the property and financial arrangements between them. By the time of a March 18 settlement conference, the parties appeared to have resolved most issues and over the next several weeks counsel exchanged draft orders. The husband’s draft orders always included a clause to the effect that the wife would indemnify him for any adverse results arising out of the Chinese proceedings. The wife’s draft orders never included such a term. 5 On April 10, for the first time, counsel for the wife sent a draft consent order to counsel for the husband that included an indemnity clause, revised from the one formerly advanced by the husband. This prompted a Yin v. Liu Saunders J.A. 3

revised term to be sent back to the wife’s counsel. Although the changes are described on behalf of the husband as not of great significance, one of the differences is a change between indemnity for “a” case to an indemnity for “any” case, involving certain parties. 6 After some further communications, the husband sought to accept the indemnity clause first presented on behalf of the wife, and the wife, through her counsel, informed the husband’s counsel that the wife was no longer agreeable to an indemnity clause. 7 On August 25, 2014, the husband applied for an order in chambers that the parties were bound by a settlement agreement reached on or about April 10, 2014. 8 Mr. Justice Leask heard the parties on January 8, 2015. He identified the question of agreement to the indemnity clause as the key issue for determination: had the parties reached agreement on essential terms, and would a reasonable third-party observer conclude from the documents and from the parties’ conduct that the parties had intended to enter into binding legal relations? He concluded that a contract had not been formed. In doing so he relied upon Beck v. Bachman, 2014 BCSC 1996 (B.C. S.C.), in which the formation of a contract was rejected in circumstances in which counsel had reached agreement on “the basic terms” of a divorce settlement but the parties had not agreed on the form of security for spousal support, a term found in the circumstances to be essential to the formation of an agreement. 9 Mr. Justice Leask concluded that the indemnity clause was as important to this case as was the security clause in Beck, that the exchange of draft orders did not result in agreement between the parties, and that the words “indemnity clause” were insufficiently defined. He concluded that the parties had at most reached an agreement to agree. 10 The appellant frames several issues on appeal including: 1) in fact and in law in finding that the respondent wife had never agreed to an indemnity clause; 2) in law in failing to consider the entire draft order in determining the issue before him; and 3) in finding that the words “indemnity clause” as used by the parties were inherently ambiguous and there was not a binding agreement reached between the parties. 11 In essence, the husband contends that the judge’s conclusion that there was at most an agreement to agree is contrary to the facts, over- 4 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

emphasizes the importance of the indemnity clause in the agreement and is unreasonable. 12 Mr. Van Der Mark, on behalf of the husband, urges us to take a re- laxed view of the question of formation of a contract, considering that this is family litigation and resolution of the dispute is desirable. 13 In my view, no basis has been established upon which we may interfere with the order. The question is really, in contractual terms, whether the husband accepted the wife’s offered indemnity clause. That is a question of fact, on which we owe considerable deference to the judge. He concluded that it had not been accepted. This conclusion accords with the proposition in contract law that generally a counter offer takes the original offer away from the table. There is nothing in the circumstances that would contradict that proposition, and form a basis upon which we could say the judge erred. 14 Indeed, it seems to me that throughout the negotiations the husband demonstrated the importance of the indemnity term by his insistence upon it, and cannot now say that it is lacking the importance ascribed to it by the judge. Nor can one say that the essence of the term was agreed once the wife proposed certain language. I say this because the clause was of sufficient importance to the husband that he proposed its language be broadened, and he advanced a different version of the clause, thereby formally making his new version the offer that was on the table. 15 Mr. Van Der Mark has said all that can properly be said on behalf of the appellant. Nonetheless, I see no basis upon which we may interfere with the order. 16 I would dismiss the appeal.

Neilson J.A.:

17 I agree.

MacKenzie J.A.:

18 I agree.

Saunders J.A.:

19 The appeal is dismissed. (submission by respondent’s counsel re. costs of the trial) Yin v. Liu Saunders J.A. 5

Saunders J.A.:

20 The costs in the trial court, in our view, are a matter for the trial court. They would be in the event of the cause in the trial court. Appeal dismissed. 6 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

[Indexed as: P. (T.G.) v. J. (M.G.)] T.G.P., Appellant and M.G.J., Respondent Newfoundland and Labrador Court of Appeal Docket: 201601H0031 2016 NLCA 12 B.G. Welsh, C.W. White, L.R. Hoegg JJ.A. Heard: March 23, 2016 Judgment: March 23, 2016 Written reasons: March 24, 2016 Conflict of laws –––– Family law — Children — Custody — Effect of residence — Ordinary or habitual residence –––– Mother had day-to-day care of child pursuant to order granted in Alberta — Father was granted specified access — Father refused to return child at conclusion of his Christmas visit to Newfoundland — Father alleged child had been sexually abused by male acquaintance of mother and it would be unsafe to return child given possibility of further abuse — Mother applied to Newfoundland family court to enforce order for return of child to Alberta — Newfoundland court found Alberta was appropriate forum — Application judge in Newfoundland declined jurisdiction to consider custody and access issues and ordered return of child to Alberta — Order of Newfoundland court contained provisions directed to addressing father’s concerns regarding possible sexual abuse, permitting father to contact any professional involved with child and prohibiting mother from allowing any contact between child and male acquaintance — Order required father to commence custody and access proceedings in Alberta — Father appealed — Appeal dismissed — There was no basis to challenge finding that child was habitually resident in Alberta — Application judge did not err in declining jurisdiction on custody and access issues in Newfoundland — There was evidence from mother that she would do everything in her power to keep male acquaintance away from child — Provisions in order requiring father to commence custody and access proceedings in Alberta were struck as they did not relate to question of return of child to mother’s care — Remaining clauses of order were sufficient to ensure possibility of harm to child was managed. Cases considered by B.G. Welsh J.A.: Brooks v. Brooks (1998), 1998 CarswellOnt 3097, 111 O.A.C. 177, 163 D.L.R. (4th) 715, 39 R.F.L. (4th) 187, 22 C.P.C. (4th) 209, 41 O.R. (3d) 191, [1998] O.J. No. 3186 (Ont. C.A.) — considered P. (T.G.) v. J. (M.G.) B.G. Welsh J.A. 7

Johnson v. Lennert (1998), 1998 CarswellNfld 221, 167 Nfld. & P.E.I.R. 167, 513 A.P.R. 167, 41 R.F.L. (4th) 442, [1998] N.J. No. 245 (Nfld. C.A.) — distinguished Wilson v. Perry (2000), 2000 CarswellNfld 8, 184 Nfld. & P.E.I.R. 1, 559 A.P.R. 1, 4 R.F.L. (5th) 154, [2000] N.J. No. 5, 2000 NFCA 4 (Nfld. C.A.) — considered Youden v. Crowley (2003), 2003 CarswellNfld 16, (sub nom. P.Y. v. I.C.) 222 Nfld. & P.E.I.R. 115, (sub nom. P.Y. v. I.C.) 663 A.P.R. 115, [2003] N.J. No. 19 (N.L. T.D.) — considered Statutes considered: Children’s Law Act, R.S.N. 1990, c. C-13 Generally — referred to s. 25 — considered s. 28 — considered s. 28(1) — considered s. 28(1)(b) — considered s. 28(3) — considered s. 29 — considered s. 29(a) — considered s. 29(b)(ii) — considered s. 30 — considered s. 49 — considered s. 49(1)(e) — considered Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Generally — referred to Tariffs considered: Rules of the Supreme Court, 1986, S.N. 1986, c. 42, Sched. D R. 55, App., Pt. A, column 3 — referred to

APPEAL by father from order of Newfoundland family court for return of child to Alberta

James Bennett, for Appellant M.G.J., Respondent, for herself

B.G. Welsh J.A. (orally):

1 This is an appeal of an order of the Newfoundland and Labrador Su- preme Court, Family Division, dated March 17, 2016, requiring the father to return his six-year-old son to the care of the child’s mother in Edmonton, Alberta. The father refused to return the child at the conclu- 8 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

sion of his Christmas visit in December 2015. He alleged that the child had been sexually abused by a male acquaintance of the mother and that it would be unsafe to return the child given the possibility of further abuse. 2 Relying on an order from the Alberta provincial court, dated June 1, 2015, granting “day to day parenting of the child” to the mother, with specified periods of parenting time (access) to the father, the mother applied to the family court in this Province to enforce an order requiring the father to return the child to the mother’s care in Alberta. When the question was raised by the father, the applications judge declined jurisdiction to consider the custody and access issues in this Province, having found Alberta, in the circumstances, to be the appropriate forum. She granted an order, with conditions, for return of the child to Alberta. 3 Because the appeal involves a child, in order to proceed without delay, transcripts were obtained on an expedited basis. In the meantime, on March 21, 2016, this Court granted a temporary stay of enforcement of the applications judge’s order to allow for the relevant documentation to be filed and served, and the appeal heard.

The Law 4 The Children’s Law Act, RSNL 1990, c. C-13, governs this proceeding. Section 25 of that Act sets out the purposes of the Part dealing with custody and access: The purposes of this Part are: (a) to ensure that application to the courts in respect of custody of, incidents of custody of and access to, children will be determined on the basis of the best interests of the children; (b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than 1 province, territory or state in respect of the custody of the same child ought to be avoided, and to make provision so that the courts of the province will, unless there are exceptional circumstances, refrain from exercising or declining jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection; (c) to discourage the abduction of children as an alternative to the determination of custody rights by the judicial process; and P. (T.G.) v. J. (M.G.) B.G. Welsh J.A. 9

(d) to provide for the more effective enforcement of custody and access orders and for the recognition and enforcement of custody and access orders made outside the province. 5 In discussing a similar provision in Brooks v. Brooks (1998), 163 D.L.R. (4th) 715 (Ont. C.A.), Osborne J.A., for the Court, explained: [21] ... Part III of the Children’s Law Reform Act, and similar legislation in other provinces, is intended to avoid forum shopping and the inappropriate removal of children from one jurisdiction to another. [22] Part III was added to the CLRA to deter forum shopping and child abduction, to provide some uniform powers and procedures for the resolution of custody/access disputes and to reduce the time for the resolution of parental disputes involving children. To secure the best information relevant to the children’s best interests, it is also important that jurisdiction over custody/access disputes not be unduly fragmented and prolonged, as has occurred here. 6 Section 49 of the Act is directed to preventing inconsistent custody and access orders being made in different jurisdictions. Subsection (1) provides: Upon application by a person in whose favour an order for custody of or access to a child has been made by an extra-provincial tribunal, a court shall recognize the order unless the court is satisfied ... (e) that, in accordance with section 28, the extra-provincial tribunal would not have jurisdiction if it were a court in the province. 7 In this case, counsel advised that the family court registry refused to accept the father’s application for custody which he attempted to file in response to the mother’s application for return of the child to her care. In fact, the registry should have accepted the application which would, then, be dealt with by the judge in accordance with section 28. 8 As it turned out, the submissions of the father regarding custody were considered by the applications judge who ultimately declined jurisdiction regarding that issue. In order to apply section 49 of the Act, the applications judge canvassed sections 28 and 29 of the Act. 10 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

9 Section 28(1) of the Act sets out criteria to be applied in determining whether a court will exercise jurisdiction over matters of custody of and access to a child. The following are relevant in this case: A court shall only exercise its jurisdiction to make an order for custody of or access to a child where ... (b) although the child is not habitually resident in the province, the court is satisfied (i) that the child is physically present in the province at the start of the application for the order, (ii) that substantial evidence concerning the best interests of the child is available in the province, (iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitully resident, (iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in the province, (v) that the child has a real and substantial connection with the province, and (vi) that, on the balance of convenience, it is appropriate for the jurisdiction to be exercised in the province. On the clear language of the provision, all of the factors in paragraph (b) must be satisfied where the child is not habitually resident in the Province. 10 Section 28(3) deals with habitual residence of a child: The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in starting judicial proceedings by the person from whom the child is removed or withheld. 11 In this case, the applications judge correctly determined that the child is not habitually resident in this Province. As discussed below, she was not satisfied that the factors in section 28(1)(b) were satisfied. P. (T.G.) v. J. (M.G.) B.G. Welsh J.A. 11

12 Section 29 of the Act provides an exception to section 28 where there is a risk of serious harm to a child: Notwithstanding sections 28 and 49, a court may exercise its jurisdiction to make, vary or rescind an order in respect of the custody of or access to a child where (a) the child is physically present in the province; and (b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if ... (ii) the child is returned to the custody of the person entitled to custody of the child, ... 13 Section 30 deals with the judge’s discretion to decline to exercise jurisdiction: A court having jurisdiction under this Part in respect of custody or access may decline to exercise its jurisdiction where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside the province. 14 In Youden v. Crowley (2003), 222 Nfld. & P.E.I.R. 115 (N.L. T.D.), LeBlanc J. discussed the situation where, as in this case, an allegation of abuse is made by the non-custodial parent residing in a different jurisdiction from the custodial parent: [21] [Section 29 of the Act] permits the court to exercise its discretion in deciding on the question of jurisdiction where there is a finding of potential serious harm to a child if jurisdiction is declined. It should be noted that even when such a potential is found, it is not mandatory that the court accept jurisdiction. The court must obviously consider the evidence before it and balance this evidence with the other circumstances of the case which tend to suggest that another court should have jurisdiction. Obviously the potential of harm to the child has predominant standing in any such situation but where the risk of serious harm can be managed or eradicated, where jurisdiction definitely belongs with another court, that court should proceed to hear the case. In such a situation, the best interests of the child are more likely to be properly determined giving each parent a proper opportunity to place the relevant evidence concerning the dispute before the court. In other words, the best interests of the child may not necessarily be met by an acceptance of jurisdiction in all cases where the potential for serious harm is identified. ... 12 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

[32] This is not a case about technicality. Jurisdiction is extremely relevant to any hearing of a dispute. In this case while the mother has applied to this court for custody, that matter is more properly determined in the courts of the province where J. has spent practically all of her life. For me to accept jurisdiction in this case would amount to a situation where the court may not hear all of the relevant evidence on the issue and to act contrary to the legislated purposes of Part III of the Children’s Law Act. ... 15 I note that the father relies on the decision in Wilson v. Perry (2000), 184 Nfld. & P.E.I.R. 1 (Nfld. C.A.), in support of his submissions. How- ever, that case must be distinguished on the basis that the point in issue was a determination regarding the habitual residence of the child. In this case, there is no basis on which to interfere with the judge’s decision that the child is habitually resident in Alberta, and that section 29 of the Act is engaged. 16 The father also relies on Johnson v. Lennert (1998), 167 Nfld. & P.E.I.R. 167 (Nfld. C.A.). However, that decision deals with a provision of the Divorce Act which is different from the provisions of the Chil- dren’s Law Act, the applicable legislation in this case.

Application of the Law 17 In this case, the applications judge, having considered the evidence and the relevant legislation, declined jurisdiction to consider the custody and access issues. However, in granting the mother’s application for return of the child to Alberta, she made an order containing provisions directed to addressing the father’s concerns regarding possible sexual abuse, in particular: (3) The [father] shall be permitted to contact any professionals involved with [the child] including teachers, child protection workers, doctors and child care providers; ... (8) The [mother] shall not let Patrick Baretto be present in her residence at any time; (9) The [mother] shall prohibit any contact or communication between Patrick Baretto and [the child]; ... (11) The [father] shall contact Ms. Heather Bates of Child Protection Services in Edmonton, AB as well as the detective, Jack Nichol, to advise them of the date of [the child’s] return to Alberta. P. (T.G.) v. J. (M.G.) B.G. Welsh J.A. 13

In addition, the order precludes the mother from removing the child from Edmonton without the written permission of the father or a court order. 18 The judge heard testimony from the father, the mother and two social workers with Child, Youth and Family Services. On this basis, she concluded that: (1) The mother is an appropriate, capable and protective parent; (2) If there is a risk to the child, it arises from the alleged conduct of an acquaintance of the mother, a risk which can be managed through child protection services, if necessary, and with an order eliminating any contact between the child and the mother’s acquaintance; (3) While the child has been in this Province for approximately three months, this was a result of the father’s refusal to return him to Alberta; (4) The child has a substantial connection to Alberta, and not to this Province; (5) The majority of the evidence relevant to the child’s best interests is in Alberta; and (6) It was not established on a balance of probabilities that the child would suffer serious harm if he was returned to his mother’s care. 19 It is clear from a reading of the transcript that there is no basis on which to challenge these determinations. The judge considered the father’s evidence regarding the conduct of the child that was of concern and the child’s explanations. She reviewed the evidence of the social workers and considered the exchange of information among police of- ficers and social workers in both jurisdictions. The judge accepted the mother’s evidence that she shared her residence with two others, not Mr. Baretto. In addition, while the mother has been in Canada under a temporary work visa, she is taking steps to become a permanent resident and has had her temporary permit extended to May 2017. The child has lived in Edmonton all his life and, prior to the Christmas visit in this Province, was attending grade one near his mother’s residence. 20 I would add one comment regarding the affidavit provided to this Court by the mother in which she states: 10. ... I will do everything I can to keep our child away from Patrick, as indicated in the order. As noted above, the order, in fact, sets out specific terms on this issue. Until she obtains a court order to the contrary, the mother will be ex- 14 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

pected to comply with the requirements that she shall not allow Mr. Baretto to be present in her residence at any time and that she shall not permit any contact or communication between him and the child. 21 I also make note of the mother’s statement in her affidavit: 16. I have roots here in Edmonton, I have friends, I volunteer in the community, I am connected with my church and my child is here. I want and plan to keep living here in Canada to be with our child. This is consistent with the evidence heard by the judge. 22 A question was raised as to clauses 5, 6 and 7 of the applications judge’s order. These state: (5) Within fourteen (14) days from the date of this Order, the [father] shall file an Application for custody of [the child] with the appropriate Court in Alberta, as well as an Interim Appli- cation for access, if necessary; (6) The parents shall obtain the earliest possible court date in Al- berta for the hearing of the custody and access issues between the parties; (7) The parties shall participate in any mediation; 23 These clauses have been struck from the order on the basis that they do not relate to the question before the judge, that is, return of the child to the mother’s care. If the father wishes to bring an application for custody to be dealt with by the Alberta courts, he is free to do so. However, there is no basis for ordering him to do so. The remaining clauses of the order are sufficient to ensure that the possibility of harm to the child is managed. 24 Finally, the mother asks for her costs in this Court and in the Court below. Such an order is appropriate in the circumstances. There was no allegation that the mother abused the child. There was a custody and access order in place in Alberta. While it may have been inconvenient for the father to deal with the question of possible abuse by Patrick Baretto in Alberta, such inconvenience is an unavoidable consequence of the parties residing in different provinces.

Summary and Disposition 25 In summary, the applications judge did not err in declining jurisdiction to consider custody and access issues in this Province, having found Alberta, in the circumstances, to be the appropriate forum, and in granting the mother’s application, with conditions, requiring the return of the child to Alberta. P. (T.G.) v. J. (M.G.) L.R. Hoegg J.A. 15

26 At the hearing, the appeal was dismissed. The temporary stay of enforcement of the applications judge’s order was set aside. The applications judge’s order was affirmed with the following exceptions: (1) clause 1 of the order was amended such that the father shall have fourteen days from March 23, 2016 to return the child to his mother’s care; and (2) clauses 5, 6 and 7 of the order were deleted. 27 It was ordered that the mother shall have her costs under column 3 of the scale of costs in this Court and in the Court below.

C.W. White J.A.:

I concur

L.R. Hoegg J.A.:

I concur Appeal dismissed 16 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

[Indexed as: Ruffolo v. David] Franco Ruffolo, Respondent (Applicant) and Michelle Anne David, Appellant (Respondent) Ontario Superior Court of Justice (Divisional Court) Docket: Brampton DC-15-2600 2016 ONSC 754 Molloy, Hambly, C.T. Hackland JJ. Heard: October 19, 2015 Judgment: February 11, 2016* Family law –––– Support — Spousal support under Divorce Act and provincial statutes — Variation or termination — Evidence –––– Parties married in 1999, had children born in 2003 and 2005, and separated in 2007 — Since separation, children resided exclusively with wife — At trial, income was attributed to husband, who was self-employed — Attribution of income was necessary because husband had not filed his income tax returns from 2005-2009 and his income and expense information was unsatisfactory — Information given to court was inconsistent with husband’s trial evidence and caused trial judge to reject it as unreliable — Following careful analysis and detailed reasons, trial judge imputed income to husband and child and spousal support was ordered on basis of imputed income — Income imputed to husband for years from 2007 to 2010 ranged from $91,469 to $303,046 — Husband appealed support awards unsuccessfully — Husband brought motion to vary final support order, challenging sum of $147,631 income imputed to him, and sought variation retroactive for two years — Motions judge accepted new evidence from husband, and reduced his income to $64,329. $76,932 and $57,000 for 2014 and ongoing, resulting in $80,758 repayment obligation to wife — Wife appealed from motion judge’s decision — Appeal allowed — Notwithstanding husband’s failure on appeal, he was able to achieve same result on motion to vary, which amount to re-litigating issue — Accountant’s report filed by husband on motion to vary relied on husband’s disclosure, and did not address factual circumstances leading to imputation — Motions judge’s acceptance of husband’s evidence ignored adverse credibility findings made at trial — There was no material change established on motion and motions judge erroneously proceeded on basis that husband could rely on his line 150 reported income now that he had filed tax returns — Motion

* Additional reasons at Ruffolo v. David (2016), 2016 ONSC 3725, 2016 Cars- wellOnt 8901 (Ont. Div. Ct.), respecting costs. Ruffolo v. David 17 judge was clearly in error in exercising discretion to make revised support orders retroactive to January 1, 2012 — Husband failed to provide evidence to motion judge as to why he was entitled to relief retroactive to date two years prior to commencement of motion — This triggered large repayment which caused hardship and prejudice to wife in face of no blameworthy conduct on her part — Order and costs ordered against wife set side, and husband was to continue paying child support in amount of $1,964 monthly and spousal support of $2,100 monthly in accordance with final order. Family law –––– Support — Child support under federal and provincial guidelines — Variation or termination of award — Evidence and burden of proof –––– Parties married in 1999, had children born in 2003 and 2005, and separated in 2007 — Since separation, children resided exclusively with mother — At trial, income was attributed to father, who was self-employed — Attribution of income was necessary because father had not filed his income tax returns from 2005-2009 and his income and expense information was unsatisfactory — Information given to court was inconsistent with father’s trial evidence and caused trial judge to reject it as unreliable — Following careful analysis and detailed reasons, trial judge imputed income to father and child and spousal support was ordered on basis of imputed income — Income imputed to father for years from 2007 to 2010 ranged from $91,469 to $303,046 — Father appealed support awards unsuccessfully — Father brought motion to vary final support order, challenging sum of $147,631 income imputed to him, and sought variation retroactive for two years — Motions judge accepted new evidence from husband, and reduced his income to $64,329. $76,932 and $57,000 for 2014 and ongoing, resulting in $80,758 repayment obligation to mother — Mother appealed from motion judge’s decision — Appeal allowed — Notwithstanding father’s failure on appeal, he was able to achieve same result on motion to vary, which amount to re-litigating issue — Accountant’s report filed by father on motion to vary relied on father’s disclosure, and did not address factual circumstances leading to imputation — Motions judge’s acceptance of father’s evidence ignored adverse credibility findings made at trial — There was no material change established on motion and motions judge erroneously proceeded on basis that father could rely on his line 150 reported income now that he had filed tax returns — Motion judge was clearly in error in exercising discretion to make revised support orders retroactive to January 1, 2012 — Father failed to provide evidence to motion judge as to why he was entitled to relief retroactive to date two years prior to commencement of motion — This triggered large repayment which caused hardship and prejudice to mother in face of no blameworthy conduct on her part — Order and costs ordered against mother set side, and father was to continue paying child support in amount of $1,964 monthly and spousal support of $2,100 monthly in accordance with final order. 18 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

Cases considered by C.T. Hackland J.: Hickey v. Hickey (1999), [1999] S.C.J. No. 9, 1999 CarswellMan 254, 1999 Car- swellMan 255, 172 D.L.R. (4th) 577, 240 N.R. 312, 46 R.F.L. (4th) 1, [1999] 8 W.W.R. 485, 138 Man. R. (2d) 40, 202 W.A.C. 40, [1999] 2 S.C.R. 518 (S.C.C.) — referred to Ruffolo v. David (2011), 2011 ONSC 7234, 2011 CarswellOnt 14459 (Ont. S.C.J.) — referred to Ruffolo v. David (2012), 2012 ONCA 698, 2012 CarswellOnt 12867, 298 O.A.C. 116, 29 R.F.L. (7th) 156 (Ont. C.A.) — referred to Trang v. Trang (2013), 2013 ONSC 1980, 2013 CarswellOnt 4069, 29 R.F.L. (7th) 364, [2013] O.J. No. 1618 (Ont. S.C.J.) — followed Willick v. Willick (1994), 6 R.F.L. (4th) 161, 119 D.L.R. (4th) 405, 173 N.R. 321, 125 Sask. R. 81, 81 W.A.C. 81, [1994] 3 S.C.R. 670, [1994] R.D.F. 617, [1994] S.C.J. No. 94, 1994 CarswellSask 48, 1994 CarswellSask 450, EYB 1994-67936 (S.C.C.) — referred to

APPEAL by mother from motion judge’s order granting father’s motion to vary earlier final support order.

Ines Gotal, for Respondent, Applicant Jeff Rechtshaffen, for Appellant, Respondent

C.T. Hackland J.: Overview 1 This is an appeal by Michelle Anne David (“the wife”) from the order of Gray J. (the motion judge) dated February 10, 2015 granting Franco Ruffolo’s (the husband) motion to vary an earlier final order of Justice Healey dated December 6, 2011 [2011 CarswellOnt 14459 (Ont. S.C.J.)]. Healey J. attributed income to the husband for child and spousal support purposes following a 5 day trial in January and March of 2011. The motion judge accepted new evidence from the husband (his income tax returns and Notices of Assessment and an accountants’ report), evidence which should have been but was not available to Justice Healey. The motion judge held that the husband had established a material change in circumstances and reduced the spousal and child support payments retroactively triggering a significant repayment obligation on the part of the wife. 2 The wife contends that the motion judge erred in finding any material change in circumstances and in making the order to vary Justice Healey’s order retroactive in effect. For the reasons explained below, we agree with the wife’s position. There was no material change in circumstances Ruffolo v. David C.T. Hackland J. 19

and, in any event, the order reducing support should not have been retroactive.

The Facts 3 The parties were married July 24th, 1999 and separated in August of 2007. There are two children of the marriage, Nicole Ruffolo born June 23rd, 2003 and Michael Ruffolo born October 29th, 2005. Nicole has been diagnosed as autistic. Since the parties’ separation, the two children have resided exclusively with the wife. 4 On December 6, 2011 Justice Healey released her reasons for judgment following a 5 day trial. Her Honour attributed income to the husband, who was and remains a self-employed commercial real estate broker. The attribution of income was necessary because the husband had not filed his income tax returns for the years 2005-2009 and his income and expense information was unsatisfactory...in Healey J’s words “the court was left to splice together what it could from the piecemeal evidence.” 5 In particular, Justice Healey had the husband’s unfiled and unas- sessed income tax returns from 2005-2009, statements of business activities and income and expense summaries and banking statements for a corporate entity through which the husband apparently carried on business, as well as personal credit card statements. The court was troubled by the extent to which much of this information was inconsistent with the husband’s trial evidence. The inconsistencies on the issue of the amount of the husband’s income caused Healey J. “to reject entirely, the reliability of Mr. Ruffolo’s sworn testimony, his unfiled tax returns, and his statements of income and business expenses.” (para. 115) 6 Ultimately, following a careful analysis and based on detailed reasons, Justice Healey held that the husband’s income for the purposes of calculation of support, after subtracting expenses from imputed gross income was as follows: 2007 - $303,046 2008 - $135,291 2009 - $91,469 2010 - $147,631 Based on this imputed income, Healy J. ordered the husband to pay child support for the two children and spousal support as follows: 20 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

(i) $6,920 as lump sum child support for the period August 1, 2007 to March 2011; (ii) $1,964 per month as ongoing child support from April 1, 2011 forward; (iii) $115,628 as lump sum spousal support for the period August 1, 2007 to December 1, 2011; and (iv) $2,100 per month as ongoing spousal support from January 2, 2012 forward. 7 The husband appealed these awards to the Court of Appeal. The appeal was dismissed by order dated October 17, 2012 [2012 CarswellOnt 12867 (Ont. C.A.)]. The court commented on the support award at paragraph 22 of its decision: Based on the appellant’s historical income and in light of his failure to file income tax returns during the relevant time period, the trial judge imputed income in entirely reasonable amounts. His ability to pay is apparent from a reading of the factual findings of the trial judge. His obligation to pay spousal support is fully evident on the record. He had been the sole income earner when the family was in- tact, while the respondent bore primary responsibility for child care, a responsibility enhanced by Nicole’s special needs. 8 In February of 2014, the husband brought the motion under appeal seeking a variation of the ongoing support provisions of the Order of Justice Healey. He challenged Healey J.’s imputation of income to him in the sum of $147,631 annually. He sought both an ongoing and retroactive reduction of both his child support payments and his spousal support payments. He requested that these reductions be made retroactive to Jan- uary 1, 2012, over two years before the motion to vary was brought. The motion judge granted that relief. 9 In particular, on this motion, argued by way of affidavit evidence and submissions by counsel, the motion judge made an Order reducing the husband’s child support payments such that the following amounts are now deemed to have been owing: (a) For 2012, $956 per month based on a finding that his income was $64,329; (b) For 2013, $1,132 per month based on a finding that his income was $76,932; (c) For 2014 and ongoing, $841 per month on a projected income of $57,000. Ruffolo v. David C.T. Hackland J. 21

As well, the order provided that any resulting overpayment of child support was to be repaid by the wife. 10 The motion judge made an Order reducing the husband’s spousal support payments such that the following amounts are now deemed to have been owing: (a) For 2012, $806 per month; (b) For 2013, $1077 per month; (c) For 2014 and on-going, $651 per month. As well the order provided that any resulting overpayment of spousal support was to be repaid by the wife. 11 On February 26, 2015, the motion judge made an Order that the wife pay the husband’s costs of the motion in the sum of $10,000. 12 As stated previously, the motion judge granted the husband’s request that the support payments be reduced retroactively to January 1, 2012. This created a debt on the wife’s part to repay to the respondent the sum of $80,758, comprised of overpayments of both child and spousal support. 13 The motions judgement stated in his endorsement: This is a motion to vary an order for spousal and child support made by Healey J. on December 6th, 2011. She based support for 2010 and 2011 on an imputed income of $147,631. She had concerns about Applicant’s disclosure, his income tax filings, and his lack of explanation for large deposits to his bank account. Applicant claimed his income should be fixed at between $43,827.96 and $54,784.95. ... The Applicant now says his support obligations should be based on his actual income for 2012, 2013 and 2014. He says his income for 2012 was $64,329; for 2013 $76,932; and is projected to be $57,000 for 2014. Thus, his child support should have been $956 per month for 2012; $1132 per month for 2013; and $841 per month for 2014. His spousal support, at the mid-range of the SSAG’s, should have been $806 per month for 2012; $1077 per month for 2013; and $651 per month for 2014. Applicant has filed affidavit material regarding his actual income for 2012, 2013, 2014. He has also filed a report by a certified chartered accountant, which confirms his income, based on Applicant’s personal income tax returns, corporate tax returns, notices of assessment; Visa statement, business account statements, and deposits and expenses. 22 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

... He [the Applicant] accepts that his income was properly attributed for 2010 and 2011, for reasons articulated by Healey J. He has addressed the factors mentioned by Healey J. He has made disclosure. He has produced income tax returns. Most significantly, he has provided a report by a chartered accountant who confirms, as much as it can be, what his income is. I accept the calculations put forward by the Applicant. I order that child and spousal support be calculated for 2012, 2013 and 2014 as proposed by the Applicant. I order that support for 2015 be continued at the 2014 rate. 14 The wife’s submission on this appeal is that the motion judge erred in accepting the husband’s position that because he had now filed his income tax returns and had received Notices of Assessment and had obtained an accountants’ report purporting to establish his income for support purposes, it was no longer appropriate to impute income to him.

Analysis 15 As noted, Justice Healey’s order of December 6, 2011 (affirmed by the Court of Appeal on October 17, 2012) imputed income to the respondent for spousal and child support purposes in the sum of $147,631 for 2010 and 2011. On that basis, she ordered child support of $1964 commencing April 1, 2011 and spousal support of $2100 per month commencing January 1, 2012. Pursuant to the Order under appeal, the motion judge reduced the income attributed for the years 2012, 2013 and 2014 to his “actual income”, retroactive to January 1, 2012. 16 Notwithstanding the respondent’s lack of success in appealing Healey J’s support order, he was able to achieve the same result in that the motions judge’s order was made retroactive to essentially the same date as Healy J’s original order. This is not only a problem of optics. The respondent, unhappy with the income imputed to him by Healey J. following a trial, in effect, has been permitted to relitigate that issue. Before the motion judge, the husband filed his tax returns for 2012-2014 supported by Notices of Assessment and an accountants’ report. A review of the accountants’ report also reveals that the report relies strictly on the income disclosed by the respondent. It does not discuss the manner he earns income as a commercial real estate agent or his billing practices. The report does not address the factual circumstances which led Healey J. to attribute income to the respondent and which led her to reject the respondent’s evidence that he was disclosing all his income. Indeed it is Ruffolo v. David C.T. Hackland J. 23

apparent in reading the accountants’ report that Healey’s J’s reasons for judgment were not provided nor considered in the preparation of that report. There was no information before the motion judge that did not depend entirely upon self-reporting by the husband. The motion judge accepted the husband’s reported income for the years 2012 to 2014 to be his actual income simply on the basis that he had filed income tax returns without more. This ignores the adverse finding made by Justice Healy as to the husband’s credibility. 17 The wife relies on the decision of Pazaratz J. in Trang v. Trang (2013), 29 R.F.L. (7th) 364 (Ont. S.C.J.) for the proposition that a moving party has the burden of demonstrating why changed circumstances make it no longer necessary to impute income. The rationale for this approach was explained by Pazaratz J.: 53. If “declared income” automatically prevailed on a motion to change support, it would defeat the purpose of imputing income in the first place. It might even be a disincentive for payors to participate in the initial court process. They could wait to see if the court imputes income, and how much. If dissatisfied with the amount, the payor could later return to court waving their tax returns, to suggest that the original judge got it wrong. 54. Support claimants should not be forced to go through this two- step process. Our family court system certainly can’t afford it. 55. Similarly, the onus should not fall on the support recipient to establish why income should still be imputed on a motion to change. That determination has already been made. The onus is on the support payor to establish that there should be a change in the way their income is to be calculated. 18 We respectfully agree with the court’s further observations in Trang at para. 50-52: 50. In most variation proceedings, it should be possible to establish why (and how) income was imputed in the original order. Those factual findings and calculations are usually set out in affidavits or transcripts (in uncontested proceedings) and written endorsements or judgments (in contested proceedings). This is relevant information which should be presented to the court on a motion to change. It is essential to an understanding of what factors the court considered when the previous order was made — and whether those factors have changed. 51. When a court imputes income, that’s a determination of a fact. It’s not an estimate. It’s not a guess. It’s not a provisional order 24 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

awaiting better disclosure, or further review. It’s a determination that the court had to calculate a number, because it didn’t feel it was appropriate to rely on — or wait for — representations from the payor. 52. A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent “declared” income. They must address why income had to be imputed in the first place. They must present evidence of changed circumstances which establish that either: a. It is no longer necessary or appropriate to impute income. The payor’s representations as to income should now be accepted, even if they weren’t accepted before. Or, b. Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate. 19 The husband argues that there was evidence from which the motion judge could find a material change in circumstances since the date of the previous order. Further, deference is to be accorded to trial and motion judges on matters governing support orders: Hickey v. Hickey, [1999] 2 S.C.R. 518 (S.C.C.). The husband argues it was open to the motions judge to accept the respondent’s evidence of his own income when supported in the accountants’ report, notwithstanding that the income evidence was self-generated, and even though Healey J. had rejected similar evidence. The husband points out that the accountants’ report did include an analysis of the propriety of the husband’s deductions from income and in several instances grossed up claimed income for deductions not properly claimed on a support analysis. The husband also put forward certain minor family circumstances which increased his expenses but these do not appear to have been considered by the motion judge. 20 It is difficult to identify a material change in circumstances in this case. A material change is one which, if known at the time, would likely have resulted in different terms in the original order. The corollary to this is that if the matter which is relied on as constituting a change, was known at the relevant time, it cannot be relied on as the basis for variation. (See: Willick v. Willick, [1994] 3 S.C.R. 670 (S.C.C.)). 21 The husband continued to carry on the business of a self-employed commercial real estate broker operating out of his home. Based on his Notices of Assessment placed in evidence on the motion to vary, his average income was $44,490 over the period 2009-2012. Before Healey J. at trial it was the husband’s contention that his average income for those Ruffolo v. David C.T. Hackland J. 25

years was $43,827. This is not a material change even on the husband’s own view of his income levels. 22 The contention the husband put forward to the motion judge was that income was imputed to him largely because he had not filed his income tax returns for the years leading up to the trial. He had now corrected that situation and had Notices of Assessments confirming his income, supported by an accountants’ report. The motion judge seems to have accepted this. However, on a review of Healey J.’s reasons for imputing income, it is apparent that she totally rejected the husband’s evidence as to the amount of income he earned. She found a “large and unexplained discrepancy” between deposits in his business account and his declared income. The accountants’ report filed on the motion did not analyze or audit the husband’s income but simply relied on statements and other information provided by the husband. As noted the accountants were apparently unaware of Healey J.’s conclusions and her finding that the husband’s information as to his income was unreliable. 23 In our view, there was no material change in circumstances established on this motion and the motion judge erroneously proceeded on the basis that the husband could rely on his line 150 reported income now that he had filed his income tax returns and received his Notices of As- sessment, thereby obviating the need to impute income. 24 The motion judge exercised his discretion to make the revised support orders retroactive to January 1, 2012. While it is not necessary to decide this, we are of the view that in doing so, he was clearly in error. As noted, Healey J. had specifically ordered that spousal support was payable in the sum of $2100 per month, commencing January 1, 2012. The respondent failed to provide any evidence to the motion judge as to why he was entitled to relief retroactive to a date two years prior to commencement of the motion. This triggered a large repayment which had the predictable effect of causing hardship and prejudice to the wife in the face of no blameworthy conduct on her part. 25 In summary, we would allow the appeal on the basis that the motion judge erred in finding a material change in circumstances and in making a retroactive reduction in the quantum of child and spousal support. We would also set aside the order of costs made in favour of the husband. The husband will continue to pay spousal and child support to the appellant in accordance with the order of Healey J. dated December 6, 2011. The Family Responsibility Office will adjust its records accordingly. 26 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

26 The appellant will provide her submission on costs to the Court within 21 days of the release of these reasons and the respondent will provide a responding submission within 21 days of receipt of the appellant’s submission. Appeal allowed. S. (S.T.) v. E. (B.) 27

[Indexed as: S. (S.T.) v. E. (B.)] S. T. S., Applicant and B. E. (S.), Respondent Ontario Superior Court of Justice Docket: FC-06-2592-1 2016 ONSC 263 Sheard J. Heard: January 7, 2016 Judgment: January 18, 2016* Family law –––– Custody and access — Variation of custody order — Fac- tors to be considered — Best interests of child –––– Father had custody of child since June 2010 — Pursuant to Final Order made in 2012, father was granted sole custody of child and mother was allowed supervised access — Mother had not been paying child support — Applicant father filed requisition for motion — Motion for summary judgment granted for sole custody of child — Motion judge also granted order that respondent mother have supervised access to child twice per month at Supervised Access Centre; order that mother shall have supervised telephone access once per week; order for psychiatric assessment; and order that mother pay child support to father in amount of $88.45 per month in accordance with Federal Child Support Guidelines — Mother had history of making false claims that child was being sexually assaulted by father and bringing child to hospitals to find physical evidence to support her allegations — Mother did not seek therapy for her emotional issues — Since child was living with father, he was thriving and emotionally stable. Family law –––– Custody and access — Variation of custody order — Fac- tors to be considered — General principles –––– Father had custody of child since June 2010 — Pursuant to Final Order made in 2012, father was granted sole custody of child and mother was allowed supervised access — Mother had not been paying child support — Applicant father filed requisition for motion — Motion for summary judgment granted for sole custody of child — Motion judge also granted order that respondent mother have supervised access to child twice per month at Supervised Access Centre; order that mother shall have supervised telephone access once per week; order for psychiatric assessment; and order that mother pay child support to father in amount of $88.45 per month in

* Additional reasons at S. (S.T.) v. E. (B.) (2016), 75 R.F.L. (7th) 59, 2016 ONSC 2142, 2016 CarswellOnt 6370 (Ont. S.C.J.). 28 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

accordance with Federal Child Support Guidelines — Mother had history of making false claims that child was being sexually assaulted by father and bringing child to hospitals to find physical evidence to support her allegations — Mother did not seek therapy for her emotional issues — Since child was living with father, he was thriving and emotionally stable. Cases considered by Sheard J.: Afolabi v. Fala (2014), 2014 ONSC 1713, 2014 CarswellOnt 6769, [2014] O.J. No. 2429, 46 R.F.L. (7th) 75 (Ont. S.C.J.) — followed CAS v. Al-Wazzan (August 5, 2015), Doc. FC-13-00002784 (Ont. S.C.) — considered Children’s Aid Society of Ottawa v. K. (S.) (2015), 2015 ONSC 4623, 2015 CarswellOnt 20837 (Ont. S.C.J.) — followed Hryniak v. Mauldin (2014), 2014 CarswellOnt 640, 2014 CarswellOnt 641, 37 R.P.R. (5th) 1, [2014] S.C.J. No. 7, 46 C.P.C. (7th) 217, 27 C.L.R. (4th) 1, (sub nom. Hryniak v. Mauldin) 366 D.L.R. (4th) 641, 2014 CSC 7, 453 N.R. 51, 12 C.C.E.L. (4th) 1, 314 O.A.C. 1, 95 E.T.R. (3d) 1, 21 B.L.R. (5th) 248, [2014] 1 S.C.R. 87, [2014] A.C.S. No. 7, 2014 SCC 7 (S.C.C.) — followed 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547, 43 R.P.R. (2d) 161, 16 C.E.L.R. (N.S.) 1, 77 O.A.C. 196, 1995 CarswellOnt 63, [1995] O.J. No. 132 (Ont. C.A.) — referred to Statutes considered: Child and Family Services Act, R.S.O. 1990, c. C.11 s. 57.1 [en. 2006, c. 5, s. 14] — considered Children’s Law Reform Act, R.S.O. 1990, c. C.12 s. 29 — considered s. 30(9) — considered Courts of Justice Act, R.S.O. 1990, c. C.43 s. 112 — considered Rules considered: Family Law Rules, O. Reg. 114/99 Generally — referred to R. 16 — considered R. 16(4) — considered R. 16(4.1) [en. O. Reg. 91/03] — considered R. 16(5) — considered R. 16(6) — considered R. 16(6.1) [en. O. Reg. 69/15] — considered R. 21(e) — considered Rules of Civil Procedure, R.R.O. 1990, Reg. 194 R. 20 — considered R. 20.04 — referred to S. (S.T.) v. E. (B.) Sheard J. 29

R. 20.04(2.1) [en. O. Reg. 438/08] — referred to R. 20.04(2.2) [en. O. Reg. 438/08] — referred to Regulations considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Federal Child Support Guidelines, SOR/97-175 Generally — referred to

MOTION for summary judgment for sole custody of child.

Wendy D. Rogers, for Applicant Kevin Doyle, for Respondent

Sheard J.:

1 On December 9, 2015, the applicant father, S. T. S. (“the Father”) filed a requisition for a motion. The Notice of Motion is dated December 10, 2015. The Father’s motion for summary judgment sought the following: (i) An order for sole custody of L. E. S., born July 26, 2006 (“L.”); (ii) An order that the respondent mother, B. E. (“the Mother”) have supervised access to L. twice per month at the Supervised Access Centre; (iii) An order that the Mother shall have supervised telephone access to L. once per week for 10 minutes; (iv) An order that, before any changes to custody and access shall be considered in the future, a full psychiatric assessment or investigation be conducted with the assessor having access to and taking into consideration the recommendations and concerns of the Fam- ily Court Clinic Assessments dated May 18, 2011 (“the 2011 FCCA”) and June 27, 2012 (“the 2012 FCCA”) as well as the Re- port of the Office of the Children’s Lawyer, dated May 19, 2015 (“the OCL Report”); and (v) An order that, commencing February 1, 2016 the Mother shall pay child support to the Father in the amount of $88.45 per month in accordance with the Federal Child Support Guidelines and based on the Mother’s annual income of $14,556. 2 This matter was on the trial list for the trial sittings commencing Jan- uary 18, 2016. 30 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

3 On January 7, 2016 I heard the Father’s motion and granted him summary judgment on all issues. I found that there was no genuine issue for trial. I granted sole custody of L. to the Father, with supervised access to the Mother, with terms and reasons to follow. The terms and reasons for my order are set out below.

Overview 4 On May 9, 2014 the Father brought an Application requesting an order that the Mother pay support for L. in accordance with the Federal Child Support Guidelines. The Father also sought an order requiring the Mother to provide evidence of her income annually on the anniversary of the support order. 5 The Father has had custody of L. since June 2010. Pursuant to a Final Order made on October 3, 2012, the Father was granted sole custody of L. and the Mother was allowed supervised access. She has not been paying support for L. 6 In her Answer, the Mother made her own claim for custody of L. with access to the Father, guardianship of L.’s property, and for other relief. Her supporting affidavit is sworn July 29, 2014. She states that she lives in Nepean, Ontario and is a stay-at-home parent with plans to work from home for her husband’s company to supplement her ODSP income. 7 At the time the application was brought, both parties were self- represented. 8 In September 2014 the Mother appointed Kevin Doyle as her lawyer. On November 5, 2015 the Father appointed Wendy D. Rogers as his lawyer.

Background 9 L. was apprehended from the Mother on May 28, 2010 by the Ottawa Children’s Aid Society (the “CAS”). On June 3, 2010 L. was placed in the care of the Father. He has remained in the Father’s care since that date. 10 On October 3, 2012, upon Application by the CAS, a Final Order was made on consent, including the consent of the Mother, whereby sole custody of L. was given to the Father pursuant to section 57.1 of the Child and Family Services Act.1 The Order directed that access to the Mother

1 Child and Family Services Act, R.S.O. 1990, c. C.11 S. (S.T.) v. E. (B.) Sheard J. 31

be supervised by the Family Services Ottawa Supervised Access Pro- gram until further order of the court. It allowed an alternative community access program such as the Rose Garden Family Support Program. 11 The Mother has exercised supervised access since L.’s apprehension in 2010. The parties agree that the access visits are going well and that there is a warm and close bond between the Mother and L. 12 The Mother opposes the Father’s continued sole custody of L., and she wishes to have custody of L. She is prepared to allow the Father generous access. The Mother also opposes the continuation of supervised visits. Should she not be awarded custody of L., she asks for more access and unsupervised access. 13 The Mother also opposes the Father’s request that she pay child support. She asserts that she is unable to do so as her income is limited to her Ontario Disability Support Plan benefits which provide a limited income. On this hearing, the only Financial Statement before the court was sworn by the Mother July 21, 2014 (CR Vol. 1, Tab 5). In it, the Mother stated that she lives in Ottawa, Ontario, receives ODSP and was last employed in December 2012. She reports her ODSP income to be $1,213 per month or $14,556 per year. 14 The Father’s claim for child support is based on the Mother’s income of $14,556 per year. 15 The Mother swore an affidavit on January 5, 2016. She states that she splits her time between her parents’ home in Ottawa, Ontario and Water- town, New York, where her husband lives. He is unable to live in or even to travel into Canada by reason of a criminal record for fraud and “DUI” offenses. 16 Another reason given by the Mother for not having to pay support for L. is that the low exchange rate on her Canadian currency in the United States makes her living costs there very high. 17 The Mother opposed the motion for summary judgment. She argued that there are genuine issues for trial including custody and, more particularly, whether she should be entitled to have unsupervised visits with L. 18 L. was born of the relationship between the Mother and Father, but they never cohabited. The relationship was high conflict. The Mother alleged physical abuse by the Father. She also made repeated allegations to the CAS that the father had been sexually inappropriate with L. As a result of those allegations, the CAS became involved. 32 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

19 The 2011 FCCA was prepared by Dr. D. McLean M.D. upon the direction of the Court. The 2012 FCCA is an update of the 2011 FCCA. Both are addressed to the presiding Judge of the Ontario Superior Court of Justice, Family Court. 20 The 2011 FCCA contains a history of the CAS involvement. Under s. 30(9) of the Children’s Law Reform Act2 (CLRA), the 2011 and 2012 FCCA may be relied upon as evidence in this proceeding and motion. 21 The 2011 FCCA and the 2012 FCCA were not prepared for the purposes of this proceeding. However, they were put before the court when the Final Order for custody and access was made on October 3, 2012. 22 There is no evidence before me, nor was any argument made, that the 2011 FCCA and the 2012 FCCA were unreliable or incomplete with respect to the circumstances that existed as at the date of those reports. Counsel for the Mother made reference to the 2011 and 2012 FCCA reports in support of his client’s position. I rely on them as evidence that I may consider in determining this motion.

The 2011 FCCA 23 The 2011 FCCA contains a detailed overview of the facts and circumstances that led to L.’s apprehension by the CAS. The first involvement 1 of the CAS occurred when the Mother was 5 /2 months pregnant with L. and she was charged with assault on the Father after throwing lukewarm coffee on him. 24 After the birth of L., the Mother contacted the CAS repeatedly once the Father began exercising access to L. She made allegations against the Father that he was threatening to take L.; that L. suffered from night terrors after access to the Father began; and that the Father’s girlfriend complained that he would beat her (the girlfriend). 25 By November 2007 the Father was allowed unsupervised access to L. That included alternate weekends and Wednesday afternoons. The Father was charged with assaulting his girlfriend in September 2008, at which time access became supervised. However, by November 2009, the Father was again exercising unsupervised access. That continued until May 2010 when the CAS apprehended L. from the Mother. 26 Starting when L. was approximately two years old, the Mother per- ceived that L. was exhibiting sexualized behaviours. She attributed the

2 Children’s Law Reform Act, R.S.O. 1990, c. C. 12. S. (S.T.) v. E. (B.) Sheard J. 33

cause to the Father. She also reported that L. had signs of blisters on his penis after a visit with the Father. She took him to the hospital but by the time he was examined nothing was observed beyond slight irritation. 27 The CAS records noted that the Mother had been assessed with mental health issues including situational depression and anxiety in 2006. There were a number of involvements with the CAS but none met the child protection mandate. 28 In April 2010, the Mother took L. to a naturopath with signs of sleep apnea. She reported to the doctor that L. complained of his “bum hurt- ing”. The Mother stated that L. said that “daddy hurt” his bottom. Her allegations were not substantiated. 29 A sixth opening with the CAS took place on March 27, 2008 when a doctor from the Children’s Hospital Emergency Department contacted the Society to report that the Mother and her Mother, C. E., attended at Children’s Hospital of Eastern Ontario (“CHEO”) with L. expressing concerns of physical and sexual abuse of L. by the Father. Apparently C. E. told the doctor that when she asked L. if his father was “kissing his pee-pee” L. had nodded “yes”. Examination revealed bruising on his thighs but the genitals and rectum were normal. 30 On March 31, 2008 C. E. contacted the CAS to again complain about the alleged sexual assault of L. by the Father. The matter was reviewed by the Child and Youth Protection Team at CHEO. The family physician also reported that the Mother had contacted her several times to express concerns about L. being abused by the Father. There was no verification of physical or sexual abuse and the CAS file was closed in June 2008. 31 The seventh opening occurred when the Mother told the CAS that the Father had been violent toward his then partner. The CAS deemed these allegations to be “historical” as the incident predated the prior opening. 32 On September 19, 2008 an eighth opening occurred after Ottawa Po- lice reported that the Father had been charged with forcible confinement, criminal harassment and assault involving his then partner, L. After that report, the Father’s access was fully supervised at CAS pending the outcome of the criminal charges. 33 From the September 2008 opening until L. was apprehended in May 2010, there are records of numerous reports to the CAS, Ottawa police, CHEO, and other professionals made by the Mother and C. E. alleging sexual abuse of L. by the Father. 34 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

(a) In October 2008 the Mother contacted the Sexual Assault and Child Abuse (SACA) unit of the Ottawa Police to report concerns of sexual abuse. In December 2008 L. was interviewed by the SACA unit and made no disclosures. The allegations were considered not substantiated; (b) On February 19, 2009 L. was reportedly seen by Dr. Ward for night terrors but the Mother and C. E. reportedly expressed concerns regarding sexual abuse and did not want to discuss the night terrors. L.’s physical examination was normal; (c) On April 1, 2009 C. E. reportedly contacted “Cyber Tips” to report a concern that her grandson was being sexually abused by the Father and that he may have published images of child pornography on the Internet. There was no evidence to support her claim. The Mother denied having any knowledge of her mother’s [C. E.’s] actions prior to being informed of them by the worker; (d) On May 25, 2009 L. was assessed by Dr. Ward of the CHEO Child and Youth Protection Team at the request of the Mother and C. E. The examination was normal. The Mother maintained that L. was exhibiting sexualized behaviours and night terrors. The Mother was encouraged to seek counselling for her issues of childhood trauma; (e) The Mother and L. were referred to a trauma and abuse counsellor so that L. might receive counselling in regards to witnessing domestic violence. The Mother and C. E. were also to attend. The counsellor had to clarify that her role was to counsel L. for domestic violence not sexual abuse. After that, no further appointments were booked by the Mother for L.; (f) In December 2009, the Mother brought L. to a walk-in clinic at CHEO on the same day wanting him examined and claiming that the Father had “touched L.’s private parts”. No concerns were noted; (g) In January 2010, C. E. reportedly contacted the Internet Child Ex- ploitation Unit of the Ottawa Police to report that the Father was posting sexually inappropriate pictures of L. She had no evidence. Ottawa police contacted the CAS worker to report that the Mother had examined L. with a black light and noted splotches. The father was interviewed and offered to take a lie detector test and to provide DNA if it would assist. This was deemed unnecessary; S. (S.T.) v. E. (B.) Sheard J. 35

(h) On January 30, 2010 L. was brought to CHEO for complaints of perianal itch and pain. C. E. reportedly expressed concerns over sexual abuse and was informed that the examination results were consistent with constipation. The Mother made reports in Febru- ary 2010 to the Ottawa police; (i) In March 2010 the Society was receiving reports that the Mother had taken L. to an ophthalmologist accusing the Father of shining a laser pointer in L.’s eyes. The audiologist reported that C. E. claimed that L. was being subjected to loud noises as a means of punishment by the Father. She asserted that the Father forced L. to perform fellatio on him and a friend, was submerged under water as punishment, bound with painter’s tape and put in the freezer chest during access and had bruising on his palms, ears, fingers and hands. When police responded during a home access visit, no bruising was noted and the Father did not own a chest freezer; (j) In May 2010 a counsellor from the Western Ottawa Community Resource Centre contacted the CAS to report that during a session with L. he disclosed “daddy hit me” and “he hurts me”. When L. was interviewed the following day he said “actually, he doesn’t hurt me” and talked positively about visits with the Father; and (k) In April and May 2010 the Mother brought L. to a naturopath for dental and sleep problems. He was asked to examine L. in regards to the Mother’s complaints of his having a sore bum and reported seeing bruising around his perianal with L. claiming that the Fa- ther had hurt his bum. A follow-up was requested at CHEO who refused to subject L. to any unwarranted medical exams. The CAS was concerned about the medical information the Mother had provided to the naturopath including her request for “further discussion of whether it’s possible to establish any possibilities of abuse being the trigger of the beginning stages of a personality disorder.” 34 Assault charges against the Father were withdrawn by the Crown At- torney in October 2009. The Father had undergone a clinical assessment by Dr. Ahmed of the Royal Ottawa Mental Health Centre. Dr. Ahmed noted that all reports of violence regarding the Father had taken place prior to his treatment. He did not feel the Father posed any risk to L., given that the allegations all occurred in the context of intimate relationships with partners. As a result, unsupervised access was reinstated in November 2009. 36 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

35 In April 2010, because of concerns over the impact of the allegations made by the Mother and by C. E., a six-month Voluntary Services Agreement with the CAS was presented to them. The Agreement required that the Mother engage in counselling, L. participate in play therapy and that C. E. not question L. after access or bring him for unwarranted physical exams. The records showed that the Mother and C. E. continued to subject L. to questioning and intrusive physical examinations. Because of their contravention of the Voluntary Services Agree- ment the CAS apprehended L. on May 28, 2010. 36 On June 3, 2010 L. was placed in the care of the Father after a few days in a foster home. Neither the foster parents nor the Father reported any nightmares or night terrors. However, L. (aged almost four years) was discovered to have twelve cavities that required surgical intervention.

The Father sought Anger Management Counselling 37 The Father acknowledged that he had a problem with his temper and that he underwent anger management counselling with Dr. Ahmed. He participated in the Anger Disorders Clinic in December 2008. Dr. Ahmed prepared a report dated December 9, 2008 in which he reported that the Father had attended and participated in the anger management group and that: “As far as prognosis is concerned, it is my feeling that Mr. S. is likely to show significant improvement and to maintain this because of the absence of major Axis 1 psychopathology, the absence of substance abuse, absence of personality disorder and his willingness to participate in treatment. I recommend that he be followed up by the Anger Disorders Clinic.” 38 The last Royal Ottawa Hospital note was dated December 3, 2009 by a social worker. She reported “Mr. S. presents to writer a great deal of insight into his experience of anger as well as one who has made a number of gains since beginning in the ADC group. It was decided that no further sessions with writer were required at this time. Writer will discuss this with Dr. Ahmed and this case is now closed to writer.”

Mother’s Need for Counselling 39 The Mother’s family, medical and psychological history was also set out in detail in the 2011 FCCA. The Mother has a history of physical and sexual abuse as a child and teen and suffered multiple head injuries as a teenager, falling from a pyramid as a cheerleader. S. (S.T.) v. E. (B.) Sheard J. 37

40 The Mother began seeing a psychologist, Dr. Goldstein in 2010. She was expressing grief, sadness and anxiety over the apprehension of L. Dr. Goldstein expressed the view that L. was being deeply scarred emotionally by being denied access to the Mother. 41 In his July 28, 2010 note, Dr. Goldstein notes that the Mother was showing insight that it was very possible there had not been any sexual abuse and realized that L. may have been influenced by C. E. is questioning. Dr. Goldstein stated that he thought the Mother was suggestible and may have been influenced by her mother’s strong emotional reactions which led her to make allegations of abuse. 42 The Mother has a history of a cutting behaviour dating back to age 17: she cut herself as a way of relieving pent-up emotions. She last did so in July 2005. 43 Dr. McLean found it “disconcerting” how many times the Mother and C. E. had brought L. to various professionals with allegations that L. was sexually abused by the Father and demanding L.’s examination. Despite Dr. Goldstein’s views, Dr. McLean questioned whether the Mother had developed insight into how L. may never have been abused by the father. He stated: I am concerned that this may represent posturing for the Court or the Family Court Clinic Assessment rather than any fundamental change in B.’s [the Mother’s] attitude. I would add that personality disorders are difficult to treat, given the individual’s lack of insight into their problems and their belief that it is others or the Society who have the problem rather than themselves. As such, they see little need for change or for treatment and do not tend to learn from past mistakes. I would, however, agree with Dr. Goldstein that B. may be easily persuaded by key individuals in her life, possibly including her Mother.” 44 In its conclusions, the 2011 FCCA states that both the Mother and the Father carried some “significant emotional baggage into their union which resulted in the birth of their son, L.” The Father is reported to have addressed a number of his difficulties which included his anxiety and anger management difficulties. He was also engaged in counselling to gain insight into his relationship difficulties. 45 Further down page 43, the 2011 FCCA notes that although the Mother had obtained some counselling: ...much of this has seemingly been focused on her past abuse or vic- timization, and while this has no doubt been important, she must also start looking at her own attitudes and behaviours and how they have 38 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

contributed to her struggles, including her difficulties with relationships. While B. was no doubt deeply hurt by the lies and infidelity which characterized her relationship with S. [the Father], she must set aside any agenda of retribution and come to recognize S.’s role as a father to L. a very different role than his having been a partner to her. In particular, B. must come to understand the importance of S.’s role as a father figure to L. and be aware that any attacks on S. are also an attack on a very important part of L. and are bound to result in the lessening of L.’s self-worth and self-esteem. 46 Commencing at page 44 of the 2011 FCCA: L. presents as an anxious and insecure young boy who is been caught up in the conflicted loyalties of a bitter and protracted custody and access dispute between his parents. While recent trends have focused on efforts to promote the value of co-parenting children, it is nevertheless important that we not forget the damage the two parents and conflict can inflict on the child who can be used as a tool or a pawn in the dysfunctional relationship with the partner. It is such damaging battles that constituted the argument of Solnit, Freud, and Goldstein in their classic book, “Beyond the Best Interests of the child” which advised that such harm to the child is best managed by providing sole custody to one parent, including the ability to dictate the extent and nature of any access to the other parent. It was our belief that L.’s placement with his father has brought a certain stability to L.’s life, and particularly as far as removing him from the battleground between the parents. B. now claims to have recognized and accepted the fact that L. was not abused by his father or at risk for serious harm when in his father’s care. However, given that B.’s accusations were a reflection of certain dysfunctional traits in her personality, I would suggest that caution needs to be exercised in accepting B.’s claims. I would indeed suggest the B.’s present attitude be judged more by her actions than by any such declarations. 47 The report concludes at page 45 with a recommendation that access should increase once the Mother has established herself in treatment that focuses on her own conflicts and how they contribute to failures in her relationships, attends anger management counselling and shows that she can attend visits on time and discuss her differences with the CAS away from L.’s presence: ...This being the case, I would suggest that one could start to institute short periods of semi-supervised access in the community and later in the home. I would recommend that B. initially not include her parents in any unsupervised visitation. S. (S.T.) v. E. (B.) Sheard J. 39

...... although in the interim I would recommend a supervision order to the father which allows for a graduated introduction of unsupervised access to the Mother. This can hopefully result someday in B. sharing L.’s parenting and allowing S. more free time for himself.

The 2012 FCCA 48 The 2012 FCCA provided an update to the 2011 FCCA. It was again prepared by Dr. David A. McLean, MD, FRCPC. Beginning at page 5, the 2012 FCCA notes that access to the Mother was increased to twice weekly in June 2011. In September 2011, after consultation with the Mother’s psychologist, it was determined that the Mother’s access would move toward semi-supervised visitation and then access in the community. However, the plan was put on hold after the events which included the Mother crying and upsetting L. on September 14, 2011 and again on September 17, 2011 referring to a small scratch on L.’s forehead as “suspicious”. 49 The CAS also decided that the Mother would not be allowed to go to the hospital on October 5, 2011 where L. was having dental surgery, due to her difficulty in containing her emotions and a tendency to “over- dramatize” situations. The Mother expressed fears that something terrible would happen to L. during the surgery and stated that her brother had “flat-lined” once while under general anaesthesia. 50 Though she was not entitled to be at the hospital, the Mother contacted the hospital several times, threatening to sue if they did not disclose information to her. She also misinformed the hospital staff, telling them that she had joint custody of L. 51 In the case review on October 7, 2011 the CAS determined that there had not been sufficient progress to warrant moving a more liberal access arrangement to the Mother. 52 At that time, the CAS was concerned that the Mother had: ...not made the necessary changes to address their concerns, and they felt that L. would be placed at risk for emotional harm should he have unsupervised access to her. The Society was advocating for father being awarded custody with supervised visitation to the Mother which would allow them to remove themselves from this matter. (2012 FCCA, page 6) 53 On May 28, 2012 at a meeting with the CAS, Dr. McLean was advised that L. been doing well with the Father and that the only com- 40 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

plaints raised came from the Mother. The CAS expressed concerns that not much had changed with the Mother since the 2011 FCCA and that the Mother refused a face-to-face meeting with the CAS unless her lawyer was present. The CAS did acknowledge that the Mother had shown an improvement in her anger management. Nevertheless, the Mother was reported to: ... blow matters out of proportion and when L. had commented on a teacher yelling at him in April, B. had conducted a lengthy questioning of him using leading questions and then proceeded to inquire whether S. was yelling at him at home.... It was noted that B.’s (sic) attempts to create false attachments for L. which included B.’s partner in Texas, and his Mother, who had apparently died recently. It was advised that during visits in the community, B. would take L. to the restaurant where she works, seemingly to show him off, rather than focusing on L.’s interests or needs. 54 Dr. McLean’s conclusions and recommendations are found at page 28 of the 30 page 2012 FCCA. He concluded that the Father had: ... done a generally admirable job in providing for L.’s needs, which have included reorganizing his employment and removing himself from his preferred front-line firefighting in order to work straight days and be present for L. There is no evidence to suggest that S., in this role of primary authority, has attempted to undermine L.’s relationship with his Mother. 55 Dr. McLean also reported that the Mother had attended psychother- apy which was geared to assist her in anger and stress management skills. The counselling was reported to have helped the Mother “control her feelings of stress, frustration and anger.” 56 Despite the noted improvement in the Mother’s self-control, at pages 29-30 Dr. McLean concludes: In considering L.’s best interests, as far as the role his Mother should play in his life, we must continue to consider whether B.’s attitude towards S. is truly changed since the time of the last report. Since that time, B. clearly disagreed with and challenged S.’s decision to have L.’s dental problems addressed surgically at the Children’s Hos- pital. Her attitudes towards the procedure was such that the Chil- dren’s Aid decided they could not allow B. access to L. in the period immediately preceding or during the procedure for fear she would only upset L. more and accentuate any of his anxieties. Had S. not shared legal authority with B. at the time, it is doubtful that the procedure would even have gone ahead. I am further concerned in regards to descriptions of B.’s continued conflictual relationship with S. (S.T.) v. E. (B.) Sheard J. 41

the Society as well as their advising that B. was questioning L. about mistreatment by his father despite [her visit] being fully supervised. The Family Court clinic remains pessimistic about S. and B. ever having the ability to co-parent L. in a harmonious and cooperative manner. L. has, in fact, seemingly done well in his father’s care and we would not recommend that this arrangement be altered. We also remain concerned about B.’s ability to be supportive of S.’s role were she placed in a situation of having unsupervised access to L. We would continue to have concerns that B. would serve to undermine L.’s relationship with his father which could include her continued anticipation that L. has been abused or mistreated by his father. I would also have ongoing concerns as far as B.’s having an agenda of still wanting L. to move with her to Texas when he reached an age where he has more input into choosing his primary residence. While we continue to believe that L. needs ongoing involvement with his Mother, we are still of the opinion that this requires monitoring to ensure it does not become a disruptive and conflictual aspect of his life. We would not, however, see any major protection issues should other resources in the community be arranged to provide access supervision, which could allow for Children’s Aid to remove themselves from this file. We would also suggest that B. continue in therapy with a goal that she can gain some further insight into L.’s best interests versus her own, which could eventually allow for less strin- gent and, perhaps even to the, unsupervised visitation between them.

OCL Report 57 Pursuant to the October 9, 2014 Order of Justice MacKinnon, the involvement of the OCL was requested. On December 4, 2014 the matter was assigned to Sandra Kapasky, BSW, LL.M, Clinical Investigator, OCL (“Kapasky”). 58 At Appendix A to the OCL Report, Kapasky lists her sources of information. Those include interviews of the Mother and the father, observational visits with L. and the Mother and with L. and the father, interviews of L., the continuing record, an interview of the Mother’s sister L. P. on April 14, 2015, and information received from the following sources: the CAS on March 23 and 26, 2015; Jenny Love, the Mother’s clinical social worker, on March 24, 2015; Dr. Lunney, the family doctor for the Mother, on March 24, 2015; Family Services of Ottawa, who had been supervising the Mother’s access, on April 29, 2015; and L.’s school in the Ottawa-Carleton District School Board on April 13, 2015. 42 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

59 The OCL Report begins with background information. That includes that the Mother was married to C. S. in March 2014 after meeting in Texas in July 2013. The Mother spends half her time in upper New York State but continues to live in Canada for 51% of her time as she and her husband have not filed the paperwork for her U.S. citizenship. When she is in Ottawa, the Mother lives with her parents who remain a positive support for her and L. The Mother reported a close relationship with her sister L. Piper. 60 From her meeting with the Father, Kapasky reported that he seeks to continue the existing custody and access arrangements. That includes the Mother’s access to L. being supervised. He is concerned that any changes to the current custody and access arrangement will put L. at risk. He notes that L. has done well since coming into his care. He also reported that he had L. tested for Ehlers-Danlos syndrome due to the Mother’s concern after her own diagnosis with this disorder. L. has tested negative. 61 The Father stated that he would support more access by the Mother to L. if he knew the Mother was healthy and would not make allegations against him. He does not believe any progress has been made on those issues. He noted concerns in the 2012 FCCA that the Mother tried to create false attachments for L. He reported that this has continued in that she sends gifts and pictures from her husband as if he and L. are close even though L. has never met or spoken to him. The Father is also concerned that the Mother has married someone who has a felony record and is not allowed to enter Canada and that she might move to the United States. 62 The Father reported a supportive relationship between L. and L. P. and her family. He takes L. to P.’s home at least twice monthly. He cannot support a relationship with L.’s maternal grandmother (C. E.) who was involved in making serious and false allegations against him. As recently as 2014, C. E. made another false allegation to the police about the Father abusing L. 63 In Kapasky’s discussions with the Mother, she was told that the Mother was seeking sole custody of L. with access to the Father. She reported that she plans to eventually to move to the United States with her husband and L. but: ...this would take some time as she has not yet filed the paperwork to live in the United States. She is hoping to get sole custody of L. and then fill out the paperwork. B. noted that she would support a rela- S. (S.T.) v. E. (B.) Sheard J. 43

tionship between S. and L. by letting L. see his father whenever he wanted. B. reported that her husband, C. is not able to enter Canada due to a felony record for fraud. She also noted that she had been charged with assault on C. as well as a breach of a Family Court Restraining Order however it was all a misunderstanding and the restraining order was dropped. B. noted that the criminal charges are to be dismissed in July 2015. (OCL Report, pps. 3-4) 64 The OCL Report contains information that raises troubling concerns about the Mother. Kapasky reports that the Mother does not believe that L. should ever have been apprehended from her care; that the Mother feels the CAS did not handle her case appropriately; and that she had made several complaints about the workers. The Mother apparently believes that the CAS had a “point to make” and that is why L. was apprehended. The Mother stated that when she took L. to the doctor and made allegations against the Father it was because she genuinely believed (and apparently still believes) that the Father had sexually and physically abused L. 65 At paragraph 2 on page 4 of the OCL Report: B. stated that she continues to believe that the child was sexually and physically abused by his father though she does not think S. is “stu- pid enough” to do it presently. She does however believe that the child is being emotionally abused by S. due to S.’s insistence on min- imizing L.’s contact with her and her family. B. presented as having a number of unresolved issues with S. regarding their past relationship stating many times that she would like him to take a “very long walk off a short pier.” She stated that despite her feelings she would support L. seeing S. whenever he wanted noting that she has not said anything negative about S. to L. in the supervised access visits. B. denies having a mental health problem and stated that Dr. McLean was not correct in diagnosing her with a personality disorder. She reported that at the time she was suffering from situational depression due to having her child apprehended but she presently is healthy. ...B. believes that L. should be having counselling to deal with his apprehension from her care. 66 Kapasky interviewed L. on four occasions including her observational visits with each of the parents. L. wanted to discuss the foster home where he had been placed and his first question was, after he was apprehended from his Mother, why was he not taken immediately to his father’s home. L. describes loving both parents and enjoying the time he spends with them. He enjoys the visits with his Mother and wishes they 44 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

could be longer like they were in the past (when the CAS worker was supervising). He was animated when describing his relationship with his cousins, L. P.’s children. 67 Kapasky observed L. at his home with his Father (OCL Report, at p. 5). The home was full of child friendly activities and toys. The father presented as “skilled at attending to L.’s needs and the child appeared secure in his father’s care.” L. showed Kapasky his room which had pictures of all his family members including one of the Mother right beside his bed. Kapasky notes: “[T]here was a great deal of laughter and appropriate affectionate (sic) between L. and his father throughout the visit.” 68 Kapasky also observed L. with the Mother at the Family Services of Ottawa Supervised Access Program. She again noticed a great deal of laughter and gentle teasing between the Mother and L. She encouraged L. to eat his lunch and he appeared to enjoy her food. Kapasky concluded: “He [L.] presented as enjoying being with his Mother and the two spent much of the visit sitting next to each other with a great deal of appropriate affection” (OCL Report at p. 6). 69 Kapasky reviewed the 2011 and 2012 FCCA. She noted that Dr. Mc- Lean had diagnosed the Mother with a personality disorder with border- line and passive-aggressive personality features and that this disorder is difficult to treat as the individual lacks insight into his or her problems and believed that it is others or the Society who have the problem. Kapasky notes that Dr. McLean had suggested that the parents obtain counselling and that the Mother obtain ongoing therapy in order to help her recognize that L. had never been abused by the Father. The plan was to give the Mother the chance to move forward from supervised access. She noted that in the 2012 FCCA Dr. McLean still recommended sole custody to the father and ongoing supervised access to the Mother. The 2012 FCCA also reiterated the need for the Mother to participate in long- term therapy to understand that the father had not been abusive and to deal with her own anger management issues. 70 At page 7 of the OCL Report, Kapasky noted that the reports from the professional collaterals - the Mother’s family doctor, Dr. Lunney, and the Mother’s clinical social worker, Jenny Love, - did not provide any in the updated information with respect to the Mother’s mental health. It appeared that neither professional was aware of the past Family Court Clinic Assessments or concerns of the Mother’s mental health. Kapasky concluded that despite the recommendations in the 2012 FCCA, the Mother did not provide any evidence that she had participated in therapy S. (S.T.) v. E. (B.) Sheard J. 45

to address her anger control problem. Furthermore, it appears that the Mother denies having that problem and blames the CAS, who she asserts treated her badly. 71 Kapasky notes that the Mother reported being charged in 2014 with assault on her husband and with breaching a Family Court restraining order. The Mother asserts that the criminal charges and restraining order were a result of a “misunderstanding”. 72 Kapasky noted that the Father reports that L. is doing well in school and with his peers. That is corroborated by the school and L.’s doctor who confirmed that L. is progressing positively. L. P. reports that she sees L. regularly with the Father and finds him to be “a happy, positive and well groomed child.” All of L.’s family doctor, his school, and his aunt reported that the Father appears to provide good care to L. with no concerns (OCL Report, at p. 8). 73 In his interview with Kapasky, L. presented “as a bright, articulate and engaging child...secure in his father’s care”. L. spoke positively about both his parents; he enjoys the time he spends with his Mother and no concerns were expressed by the Supervised Access Program. The father has not taken L. to counselling as he does not feel he needs it. 74 In her interview with him Kapasky had noted that L. had many questions about why he had been put in foster care. For that reason, she believes that the Father should refer L. for counselling to help them deal with any questions or concerns. 75 The comments at the bottom of page 8 of the OCL Report are significant: Since L. has been in S.’s sole custody, the risk of emotional harm to the child has been minimized as he is not been exposed to the ongoing contentious custody dispute between his parents that appear to envelop his early years and also because he is not been subjected to constant allegations and investigations regarding his father sexually abusing him. This may be why L. did not present to the writer as the same anxious and insecure young boy who Dr. McLean of the Fam- ily Court Clinic saw in 2011 and 2012. L. has been able to continue his relationship with his Mother through supervised access and his father has supported a relationship with his extended maternal family by taking them regularly to the home of his maternal Aunt and cousins. The writer is highly concerned about what has not occurred since the updated report of the Family Court Clinic approximately three years ago. Despite clear recommendations of the Family Court Clinic, there is no evidence that B. has gone through extensive ther- 46 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

apy or anger management, therefore B. does not appear to have gained the understanding that L. was not sexually abused by his father. This is something that Dr. McLean indicated was necessary before any change in the supervised access arrangement could be contemplated. In this investigation B. reported believing that S. did sexually and physically abuse L. in the past and that he was presently emotionally abusing the child.... Dr. McLean was clear in his concerns and in diagnosis and without any mental health professional update, the writer is not able to report any changes or improvements. It is concerning to the writer that B. has recently been involved with criminal court in United States where she was charged with assaulting her husband and breaching a Family Court restraining order. Also, it is very notable that the Children’s Aid Society has informed the writer that the Society would have concerns if there was any change to the present custody and access of L. without a full psychiatric assessment by a professional who deals with protection matters. Therefore, it is the opinion of the writer that no changes should be made to the present custody and access order unless a full psychiatric assessment can be provided by someone who has full access to the previous Family Court Clinic Assessments, concerns and recommendations as well as this report of the Office of the Children’s Law- yer.... (OCL Report, pps. 8-9.)

Affidavit Evidence on the Motion 76 In support of his motion for summary judgment, the Father swore an affidavit on December 2, 2015. To a large extent, his affidavit reiterates what is contained in the 2011 and 2012 FCCAs. However, he did state that, after having received the OCL Report, he has arranged for L. to have counselling with Dr. Robert Bolduc. 77 The Mother swore an affidavit on January 5, 2016 for use on this motion. The main focus of her affidavit was to show that the Father was abusive to her, to other girlfriends, and to L. At paragraph two, the Mother sets out details of the physical and sexual abuse she claims to have suffered at the hands of the Father. 78 At paragraph seven of her affidavit, the Mother asserts that the Father assaulted L. and/or abused other women with whom he had relationships. As proof of those assaults, she attaches as Exhibit “B” a letter dated May 31, 2010 from a counsellor at the Western Ottawa Community Resource Centre recounting a discussion with L. in which he allegedly reports that “his dad hurts him”. Exhibit “D” to her affidavit is identified as a blog written by a former girlfriend of the Father. The Mother asserts that the S. (S.T.) v. E. (B.) Sheard J. 47

former girlfriend is describing abuse at the hands of the Father. Exhibit “E” is identified as a statement given to the police by another former girlfriend of the Father. Again, the Mother asserts that this statement relates to an assault by the Father on this former girlfriend. 79 In her affidavit, the Mother challenges that the Father was acquitted of assault charges in 2009. She reiterates allegations made prior to L.’s apprehension that the Father hurt L. and that L. was showing sexualized and aggressive behaviour. At paragraph 12, respecting the events that led to the CAS apprehension, the Mother denies that she had breached the Voluntary Services Agreement with the CAS. She also asserts that she and her parents signed that agreement “under duress”. 80 Similarly, at paragraph 14 of the Mother’s affidavit, she asserts that the CAS withdrew their involvement with the family and that she consented to custody to the Father with supervised access to her “due to pressure and threats by my lawyer. He sat in my vehicle screaming and cursing at me that if I didn’t sign, he simply would not show up for court. I realize now that it was a serious mistake to agree to the order.” 81 The Mother complains that L.’s school has been instructed by the Fa- ther not to pass on information about L. to her; that the Father forbade her from sending snacks/cards/or holiday treats for L. and his class although these had a positive influence on L. 82 At paragraph 22, the Mother blames her restricted access on the fact that: there was a fear that I would pursue further allegations of abuse by the father against the child. These concerns were the results of the child making a declaration of abuse to a counsellor as described above. I also had obvious concerns that the applicant had been severely physically, sexually, mentally and verbally abusive to me as well as to multiple other partners, in particular ...[she names two women]... 83 At paragraphs 25 and 26 of her affidavit, the Mother asserts that the Father is in contempt of a court order made in 2007 by which neither parent was to change L.’s name without the consent of the other. The Father did change L.’s name in 2013. However, by that date, the Father had sole custody of L. and was entitled to change his name. L.’s last name is now S. The father maintained E. as L.’s middle name but did delete middle names “M. and S.” The Mother states that these names were chosen by her, after her friend and her own father. 48 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

The Mother’s Counselling 84 The Mother asserts that she has received counselling throughout the years. Most recently she was assisted by the Mental Health Association of Jefferson County in Watertown. She claims to have been assessed and attaches as Exhibit “H” a copy of a letter from Michelle Fulton (“Fulton”) dated January 4, 2016. The Mother states that they assessed her mental health and referred her for further services in their program. Exhibit “H” is not an assessment. It is a letter from somebody who describes herself as a “member advocate”. In her letter she states outright that she is not a clinical doctor. At the top of the second page of the letter she states: ...I am not a clinical doctor and therefore I am not legally allowed to make a medical diagnosis of Mrs. S. I can however offer my opinion based on my professional background and experience as well as the evidence and paperwork I have been provided. (emphasis added) 85 Fulton provides no information as to what qualifications she does have. Despite that, Fulton proceeds to offer her opinion based on the evidence she has seen and a report from L.’s therapist. She states that, in her opinion, she sees no evidence of a personality disorder. In the opinion of Fulton, the Mother suffers from PTSD. 86 There is no evidence that Fulton has any qualifications that would allow her to offer any opinion evidence. Indeed, she is clear that she is not a clinical doctor and not legally able to make a medical diagnosis. There is no basis upon which the evidence of Fulton can carry any weight in this matter. Accordingly, I give Fulton’s evidence no weight. 87 The Mother also provided an unsigned letter from Jenny Love MSW, RSW. It indicates that it was to be signed on December 21, 2012. The letter is addressed: “To whom it may concern”. In it, Love states that she had seen the Mother for counselling on five occasions ending on Decem- ber 20, 2012. The letter states that the goals of the sessions were “to offer supportive, strength-based and solution-focused counselling to empower and guide Ms. E. in a time where she continues to await a diagnosis of Ehlers-Danlos Syndrome, and continuing custody decisions.” 88 I accept as evidence what is set out in Love’s letter. However, it is not current and does not provide details of any counselling that may have been received on and after December 20, 2012. Therefore, it is not helpful on the issue of the Mother’s supervised access. Moreover, it reports that counselling is to be taken over by Carin Roessler MSW, RSW in S. (S.T.) v. E. (B.) Sheard J. 49

2013. The Mother does not provide any information concerning counselling, if any, that she received from Roessler. The Court draws the inference that either the Mother did not receive such counselling or that the outcome of that counselling would not have helped her in this application or motion. 89 The Mother attached copies of staff Observation Notes made in 2015. The purpose of these notes was to show that the supervised visits were going well. She also asked the Court to consider these notes as evidence that, notwithstanding her continued negative views of the Father, she did not discuss those on her visits with L. 90 I accept that the supervised visits have been going well. Indeed, that was the evidence before the court in 2012 and set out in the 2012 FCCA. That is not the issue today. The issue today is whether the Mother’s visits can continue without supervision. On that issue, I am guided by the two FCCA reports and by the 2015 OCL Report. 91 The Mother has offered no evidence that she has sought or received the counselling that Dr. McLean believed she required to move her toward unsupervised visits. Moreover, in her own evidence, the Mother discloses that she has ongoing anger management issues which have caused her to breach a Family Court Order and led to criminal charges against her. 92 Taken as a whole, and without my having to make any credibility findings, the evidence leads to the conclusion that the Mother has not sought or received counselling that she requires in order to allow her to have unsupervised visits with L. Moreover, her fixation on the alleged sexual abuse of L. by the father and her inability to move past the conflicted relationship she had with him more than six years ago confirms that the issues that existed at the time of the 2011 and 2012 FCCA remain unresolved. 50 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

The Law Summary Judgment 93 Rule 16 of the Family Law Rules3 (FLR) governs motions for summary judgment, including those brought in child protection cases. Rule 16 of the FLR provides, in part, as follows: (4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. O. Reg. 114/99, r. 16 (4). (4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. O. Reg. 91/03, s. 5. (5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party. O. Reg. 114/99, r. 16 (5). (6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. O. Reg. 114/99, r. 16 (6). 94 The language in Rule 16 of the FLR, like that in Rule 20 of the Rules of Civil Procedure,4 is mandatory: the court shall make a final order whenever the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.5 95 Hryniak v. Mauldin6 is the starting point for the principles that apply on a summary judgment motion. In Hryniak, the Supreme Court considered Rule 20 of the Rules of Civil Procedure;7 however, courts have held that the Hryniak principles are applicable to motions for summary judgment in child protection cases (i.e. under Rule 16 of the FLR).8 For example, in her judgment in Children’s Aid Society of Ottawa v. S.K., Jus-

3 Family Law Rules, O. Reg. 114/99. 4 Rules of Civil Procedure, RRO 1990, Reg 194, R. 20. 5 FLR, supra note 3, r. 16(6); Rules of Civil Procedure, ibid, r. 20.04. 6 Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (S.C.C.) [Hryniak]. 7 Rules of Civil Procedure, supra, note 4. 8 See e.g. Children’s Aid Society of Ottawa v. K. (S.), 2015 ONSC 4623 (Ont. S.C.J.) [K (S.)]; CAS v. Al-Wazzan (August 5, 2015), Doc. FC-13-00002784 (Ont. S.C.). S. (S.T.) v. E. (B.) Sheard J. 51

tice Parfett concluded that the principles in Hryniak applied to summary judgment motions brought under Rule 16 of the FLR,9 relying on the following passage from the Superior Court decision of Afolabi v. Fala: The Supreme Court explained in Hryniak that while Rule 20 in the Ontario Rules of Civil Procedure goes further than other summary judgment rules in Canada, the values and principles relevant to its interpretation are of general application. In essence, the appropriate use of a motion for summary judgment under the (Ontario) Rules of Civil Procedure is an access to justice issue for parties to a civil action. I see no reason why parties to a family law case should not be accorded the same access to justice under the same principles. If anything, family law in Ontario cries out for the summary disposition of issues in appropriate circumstances as much as in any other area of law. This accessibility to timely, affordable justice is as important to the parties in conflict as it is to the confidence of citizens in our court system that cases will be adjudicated efficiently and effectively according to law.10 [emphasis added] 96 Hryniak sets out the following key principles respecting the standard for granting summary judgment: ...When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterat- ing that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.11 97 While this is not a child protection action, it is analogous to such a proceeding in that the focus of this Court is on the best interests of the child. Also, there is an element of child protection given the history and the involvement of the CAS and the statement by the CAS, as set out in the 2015 OCL report that the CAS would become concerned if there was a change in supervised access without a full psychiatric assessment.

9 K (S.)., ibid, at para. 74. 10 Ibid, quoting Afolabi v. Fala, 2014 ONSC 1713, 46 R.F.L. (7th) 75 (Ont. S.C.J.), at para. 38 [Afolabi]. 11 Hyrniak, supra note 6 at para. 50. 52 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

98 This motion must be decided on the evidence before it. On a motion for summary judgment, “parties must put their best foot forward; in other words, they ‘must lead trump or risk losing.’”12 99 Both the FLR (rule 16(6.1)) and the Rules of Civil Procedure (rule 20.04(2.1)-(2.2)) provide for enhanced fact-finding powers that a judge may choose to employ on summary judgment motion. For example, the FLR rule is: (6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial: 1. Weighing the evidence. 2. Evaluating the credibility of a deponent. 3. Drawing any reasonable inference from the evidence. 100 Of the new fact-finding powers provided for in Rule 20 of the Rules of Civil Procedure, Hryniak said: The new powers in Rules 20.04(2.1) and (2.2) expand the number of cases in which there will be no genuine issue requiring a trial by permitting motion judges to weigh evidence, evaluate credibility and draw reasonable inferences. These new fact-finding powers are discretionary and are presump- tively available; they may be exercised unless it is in the interest of justice for them to be exercised only at a trial; Rule 20.04(2.1). Thus, the amendments are designed to transform Rule 20 from a means to weed out unmeritorious claims to a significant alternative model of adjudication.13 101 Hryniak provides a roadmap for a judge on a motion for summary judgment: On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to

12 Afolabi, supra note 10, at para. 47, citing 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 (Ont. C.A.) at p. 557. 13 Hryniak, supra note 6, at paras. 44-45 [internal citation omitted; emphasis in original]. S. (S.T.) v. E. (B.) Sheard J. 53

fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.14 102 The Mother asserts that a trial is required in order to test the basis upon which the OCL completed its report. Counsel for the Mother asserted that there was no opportunity to cross-examine the author of the OCL report and was concerned that there was too little documentation provided by the collateral sources. 103 Counsel for the Father submitted that the OCL Report could have been challenged. It was provided in May 2015. There was no challenge to it and there is no evidence that there was ever a request for questioning or to cross-examine the author of the OCL Report. 104 The OCL Report was prepared pursuant to the Order of Justice MacKinnon made October 9, 2014 under s. 112 of the Courts of Justice Act. 105 That Act reads as follows: Investigation and report of Children’s Lawyer 112. (1) In a proceeding under the Divorce Act (Canada) or the Chil- dren’s Law Reform Act in which a question concerning custody of or access to a child is before the court, the Children’s Lawyer may cause an investigation to be made and may report and make recommendations to the court on all matters concerning custody of or access to the child and the child’s support and education. R.S.O. 1990, c. C.43, s. 112 (1); 1994, c. 27, s. 43 (2). Idem (2) The Children’s Lawyer may act under subsection (1) on his or her own initiative, at the request of a court or at the request of any person. R.S.O. 1990, c. C.43, s. 112 (2); 1994, c. 27, s. 43 (2).

14 Ibid, at para. 66 [emphasis in original]. 54 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

Report as evidence (3) An affidavit of the person making the investigation, verifying the report as to facts that are within the person’s knowledge and setting out the source of the person’s information and belief as to other facts, with the report attached as an exhibit thereto, shall be served on the parties and filed and on being filed shall form part of the evidence at the hearing of the proceeding. R.S.O. 1990, c. C.43, s. 112 (3). Attendance on report (4) Where a party to the proceeding disputes the facts set out in the report, the Children’s Lawyer shall if directed by the court, and may when not so directed, attend the hearing on behalf of the child and cause the person who made the investigation to attend as a witness. R.S.O. 1990, c. C.43, s. 112 (4); 1994, c. 27, s. 43 (2). 106 Rule 21(e) of the Family Law Rules allows a party to serve and file a statement disputing anything contained in the report. No such dispute was filed. 107 As permitted by the Family Law Rules and s. 112 of the Courts of Justice Act,15 the 2015 OCL report is treated as evidence. Accordingly, the evidence before me is overwhelming that there is no basis upon which to change the status quo to allow the Mother to have unsupervised access to L.

Onus: Who bears the onus in this matter? 108 On the hearing of the motion, counsel for the Father argued that this should be treated as a Motion to Change and that the onus is upon the Mother to show a material change in circumstances that would justify overturning the 2012 custody and access order. 109 Counsel for the Mother submits that this should be treated as a new hearing and that it is too late for the Father to argue that the onus is upon the Mother. 110 The current court application brought by the Father was simply to ask for an order that the Mother pay support for L. In her cross-application, the Mother asked for custody of L. and for access to the Father. The pleadings were not framed as a motion to change, nor did the Father make that argument in his factum. The applicability of section 29 of the CLRA and the need for the Mother to show a material change in circum-

15 Courts of Justice Act, R.S.O. 1990, c. C.43, s. 112 S. (S.T.) v. E. (B.) Sheard J. 55

stances was first raised by the Father in oral argument on the motion. Counsel for the Mother took the position that it was too late to raise that issue and that it would result in unfairness to the Mother. 111 Section 29 of the CLRA provides as follows: A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. R.S.O. 1990, c. C.12, s. 29. 112 Section 29 of the CLRA is mandatory. It is not within my discretion to ignore that section simply because neither party has raised it in their pleadings. Accordingly, I find that there is an onus upon the Mother to show that there has been a material change in circumstances that has or is likely to affect the best interests of L. For the reasons set out in these reasons, I find that the Mother has failed to meet that onus. 113 Even if I were to ignore the obligation on the Mother to show material change, based on the findings of fact I have made, were this matter to have been brought as a new application, I would have still reached the same conclusion. For the reasons identified in the 2011 and 2012 FCCAs and in the OCL Report, it is in L.’s best interests that he remain in the sole custody of the Father and that the Mother have only supervised access to him.

Is there a Genuine Issue Requiring a Trial? 114 As set out above, I find that the father has established a prima facie case that summary judgment should be granted. 115 Having found that the Father has made out a prima facie case, the onus shifts to the Mother to demonstrate that there is a genuine issue requiring a trial.

The Mother’s Arguments that there are Genuine Issues Requiring a Trial 116 The Mother argues that there are genuine issues for trial and, therefore, that this is not an appropriate matter to be determined by way of summary judgment. A set out above, she asserts that she has a right to test the 2015 OCL Report and to cross-examine its author. Again, as the Mother has failed to dispute anything in the report, I do not find that to be a genuine issue for trial. 117 The Mother asserted that the OCL Report was a reiteration of the 2011 FCCA and the 2012 FCCA. I disagree. The OCL Report was pre- 56 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

pared by a clinician who met with the parties, with L., and with other involved persons and professionals. 118 As is clearly set out in the 2011 FCCA and the 2012 FCCA and, also, in the 2015 OCL Report, delivered in May 2015, for the Mother’s access of L. to move from supervised to unsupervised rests entirely upon evidence that she has taken the appropriate steps to obtain counselling and treatment for her anger management and other issues. 119 The Mother argues that she does not have the funds to obtain the psychiatric assessment recommended in the 2015 OCL Report. However, she has provided no evidence to back up that assertion. Therefore, I cannot conclude that the absence of a psychiatric assessment can be explained by a lack of financial resources. Even if that were the case, that would not be a justification to ignore the strong recommendations in the 2015 OCL Report. 120 At all times, any and all decisions must be based upon the best interests of the child. Again, there is no evidence that L. is suffering by the supervised access. Rather, the evidence is that the visits are happy and successful. Moreover, the evidence is that the status quo that has endured for the last five years has transformed L. from an anxious child to one who was confident and secure.

Is it Necessary to Resort to the New Fact-Finding Powers in this Case? 121 As set out above, I find that the evidence is sufficient to grant summary judgment without requiring me to weigh credibility. As discussed above, the Mother has not put forward evidence that would require me to weigh credibility. For the reasons set out above, I cannot and do not consider the opinion evidence of Fulton who is not qualified in any way to give an opinion. Further, the evidence of the Mother as to the supervised visits is not in contention: all agree that those visits are going well. The Mother has put forward no evidence on the key issue in this application: is there any evidence that would support a change in custody or supervised access?

Child Support 122 There is undisputed evidence of the Mother’s ODSP income. That is the figure the Father relies upon in his request for support for L. The Mother has not provided any evidence upon which I could conclude that she should not pay child support in accordance with the Federal Child S. (S.T.) v. E. (B.) Sheard J. 57

Support Guidelines. I do not accept her argument that a poor U.S./Canadian currency exchange rates is justification to exempt her from contributing toward the support of L. Also, I note that she spends her time equally between her parents’ home in Canada and her husband’s home in the U.S. Without evidence to the contrary, I conclude that her living costs are shared in both homes and that it would be no hardship to her to pay $88.45 per month in accordance with the Federal Child Sup- port Guidelines and based on the Mother’s annual income of $14,556.

Best Interests of the Child 123 Applying the applicable legal principles to this case, the evidence allows me to find the facts necessary to conclude that custody of L. should remain with the Father and that access to the Mother should remain supervised.

Orders 124 I make the following Orders: 1. The Applicant, S. T. S. shall have sole custody of L. E. S., born July 26, 2006 (“L.”). 2. The Respondent B. E. shall have supervised access to L. twice per month at the Supervised Access Centre or alternate facility as may be agreed upon between the parties. 3. The Respondent B. E. shall have supervised telephone access to L. once per week for 10 minutes or such longer or other telephone access as may be determined by the Applicant. 4. Before any changes to custody and access shall be considered in the future, a full psychiatric assessment or investigation shall be conducted with the assessor having access to and taking into consideration the recommendations and concerns of the Family Court Clinic Assessments dated May 18, 2011 and June 27, 2012 and the Report of the Office of the Children’s Lawyer, dated May 19, 2015. 5. Commencing February 1, 2016 the Respondent, B. E. shall pay child support to the Applicant in the amount of $88.45 per month in accordance with the Federal Child Support Guidelines and based on the Mother’s annual income of $14,556. 58 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

Costs 125 The Father was successful on the Motion and Application. Subject to any Offers to Settle the Father is entitled to his costs. If the parties cannot agree on costs, submissions not exceeding 3 pages in length, excluding a bill of costs, may be filed within 14 days of the date of this endorsement. Motion granted. S. (S.T.) v. E. (B.) 59

[Indexed as: S. (S.T.) v. E. (B.)] S.T.S., Applicant v. B.E. (S.), Respondent Ontario Superior Court of Justice Docket: FC-06-2592-1 2016 ONSC 2142 Liza Sheard J. Judgment: March 30, 2016* Family law –––– Costs — In family law proceedings generally — Factors considered — Multiple factors considered –––– Father’s motion for summary judgment granting him sole custody of child, with supervised access to mother, and requiring contribution to support of child was granted; mother’s responding claim for relief was dismissed — Costs submissions received — Father awarded costs in amount of $2,200 — Father was entirely successful — Matter was of moderate complexity and difficulty — Father was seeking to maintain status quo on custody and access and only new relief was request for mother to contribute to support of child — Lengthy record clearly described steps that mother needed to take in order to move from supervised to unsupervised access and she did not take those steps — Mother’s claim for custody was unrealistic in light of years in which father had sole custody and likely made to discourage father from seeking child support — Mother’s strenuous resistance to contributing toward support of child underscore unreasonableness of her claim for custody — Lengthy record documented mother’s unfounded and unsubstantiated allegations that father sexually abused child and resulting harm to child — Mother yet again repeated allegations and dredged up events predating years-old final order granting father sole custody — Mother’s conduct amounted to unreasonable and bad faith behaviour — Mother chose to re-litigate issues previously determined instead of taking clearly-identified steps required to gain unsupervised access to child — Father’s costs were reasonable amount for work involved and nature of application — Hourly rates charged by father’s lawyers were very low — Mother would reasonably expect to pay something toward costs of her losing application as well as father’s successful application for support. Cases considered by Liza Sheard J.: Parsons v. Parsons (2002), 2002 CarswellOnt 2536, 31 R.F.L. (5th) 373, [2002] O.J. No. 3034, 16 O.F.L.R. 52 (Ont. S.C.J.) — referred to

* A corrigendum issued by the court on May 2, 2016 has been incorporated herein. 60 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

Takis v. Takis (2003), 2003 CarswellOnt 3936, [2003] O.J. No. 4059 (Ont. S.C.J.) — referred to Rules considered: Family Law Rules, O. Reg. 114/99 Generally — referred to R. 18 — referred to R. 24 — considered R. 24(1) — considered Regulations considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Federal Child Support Guidelines, SOR/97-175 Generally — referred to

ADDITIONAL REASONS relating to costs of judgment reported at S. (S.T.) v. E. (B.) (2016), 75 R.F.L. (7th) 27, 2016 ONSC 263, 2016 CarswellOnt 1354 (Ont. S.C.J.), granting father’s motion for summary judgment on custody and support and dismissing mother’s claim for relief.

Wendy D. Rogers, for Applicant Kevin Doyle, for Respondent

Liza Sheard J.:

1 This was a motion for summary judgment brought by the applicant father. He was seeking sole custody of the child of the parties, with supervised access to the respondent mother. He also sought an order that the mother pay Guideline support for the child and that she provide annual evidence of her income. 2 The applicant father had had custody of the child since June 2010. Pursuant to a Final Order made on October 3, 2012, he was granted sole custody of the child and the respondent mother was allowed supervised access. She had not been paying child support. 3 In response to the applicant’s application, the Mother brought her own claim for custody of the child, with access to the father, guardianship of the child’s property, and for other relief. 4 On January 7, 2016 I granted the applicant father’s motion for summary judgment on all issues and released full reasons on January 18, 2016. I invited the parties to provide brief submissions on costs in the event that they could not agree on costs. I have received those submissions. S. (S.T.) v. E. (B.) Liza Sheard J. 61

Positions of the Parties 5 The applicant father seeks his costs as a successful party. 6 The respondent mother argues that no costs should be awarded because the issues in dispute concerned the best interests of the parties’ child and that the Court ought not to discourage parties from placing proposals before the Court by the concern of a costs award. The respondent also argues that in a case in which child custody and access are the main issues, costs ought not to be awarded unless there are exceptional circumstances. She argues that she ought not to have costs awarded against her as she was not acting unreasonably in defending the motion for summary judgment, the outcome of which would determine whether or not her access would continue to be supervised. Lastly, she argues that an award of costs would create financial hardship, as her income is under $15,000.00, from which she must already pay child support which I had ordered that she pay.

Factors 7 Rule 24 of the Family Law Rules, O. Reg. 114/99 (the “FLR”) govern the award of costs. Rule 24(1) creates a presumption that a successful party is entitled to costs. 8 The FLR also require the court to consider the importance, complexity or difficulty of the issues; the reasonableness or unreasonableness of each party’s behaviour in the case; bad faith of a party; the lawyer’s rates; the time properly spent on the case; expenses properly paid (FLR, 24) and offers to settle (FLR 18).

Success 9 The applicant was entirely successful in this litigation.

Complexity and Importance of the Issues 10 The matter was of moderate complexity and difficulty. In essence, the applicant was seeking to maintain the status quo with respect to custody and access and only the new relief related to a request that the respondent mother contribute toward the support of the child. There was a lengthy record in this matter which was quite clear in describing the steps that the mother needed to take in order to move from supervised to unsupervised access. She did not take those steps. 62 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

Unreasonable Behaviour or Bad Faith 11 Counsel for the applicant also argues, and the evidence would support, that the application made by the respondent for custody of the child with access to the father was made only after he brought an application seeking that she contribute towards the support of their child. Given that the mother had not had custody of the child since June 2010 and had consented to a final order in October of 2012 which gave sole custody of the child to the applicant, her claim for custody was unrealistic. Moreo- ver, she has only had supervised access to the child since 2012. It is difficult to avoid concluding that the mother’s custody application was made to discourage the father’s application seeking an order that she contribute towards the support of their child. 12 The mother strenuously resisted having to contribute anything toward the support of the child. Her position on that issue underscored the unreasonableness of her application for custody of the child. 13 Finally, the lengthy record documented the unfounded and unsubstantiated allegations of the father’s sexual abuse of the child made by the mother and by her own mother as against the applicant. Those allegations were found to be harming the child and were central to the previous Court’s determination that access be supervised. Despite that, in her application in this matter, the mother again repeated these allegations and dredged up events that predated the final order granting the applicant sole custody of the child. 14 I therefore conclude that the Answer and allegations made by the respondent mother in this proceeding amounts to unreasonable and bad faith behaviour. 15 While I accept that the mother was genuine in her desire for an order for unsupervised access, the previous court orders outlined the steps that the mother would have to take in order to change from supervised to unsupervised access. She did not take those steps. Instead, she chose to try to re-litigate issues previously determined. For that reason, I find her conduct to be unreasonable. It was always open to her to simply agree to pay something toward the support of her child, without requiring the applicant to bring this court application. Similarly, having had a court identify the steps that she needed to take to move to unsupervised access, it was within the mother’s power and control to do so. Had that happened, the outcome of her application might have been different. It is even possible that the applicant would have agreed to move to unsupervised ac- S. (S.T.) v. E. (B.) Liza Sheard J. 63

cess, had he been provided with any evidence that previously identified concerns had been addressed.

Lawyer’s Rates 16 Counsel for the applicant has submitted her Bill of Costs which shows the total amount charged to the applicant for the entire proceeding was $3,657.86. The applicant asks for costs on a full indemnity basis or, in the alternative, any lesser portion of costs that this Court might deem appropriate and just. 17 The hourly rates charged by the applicant’s lawyers are $150 for Wendy D. Rogers, who was called to the bar in 1990, and $109.14 per hour for Jessica Vo, called to the bar in 2012. I find these hourly rates to be very low and more than reasonable. 18 I find that the costs sought by the applicant, even on a full indemnity scale, would be a reasonable amount for the amount of work involved and the nature of the application. 19 Were it not for the financial circumstances of the respondent, the decision to award the applicant costs on a substantial indemnity basis would be easy. Further, I am mindful of the jurisprudence that warns against allowing a party to be shielded from any liability for costs simply by reason of their lack of income and assets. (Parsons v. Parsons (2002), 31 R.F.L. (5th) 373 (Ont. S.C.J.) and Takis v. Takis, [2003] O.J. No. 4059 (Ont. S.C.J.)) 20 In determining the amount of child support to be paid by the mother, I took into account only her ODSP income. However the mother’s supporting affidavit sworn July 29, 2014 stated that she was a stay-at-home parent with plans to work from home for her husband’s company to supplement her ODSP income. Also, there was evidence that, although her husband lives in the United States, when she is here, the respondent lives with her parents and when she is in the United States, she lives with her husband. There was no evidence as to the amount of income the applicant has been or will be able to earn working for her husband’s company. 21 To deny any costs to the applicant would be unfair to him. As stated above, I do accept that the respondent’s cross-application was intended to be used as a tool to discourage the applicant from pursuing child support. For those and the other reasons set out above, I find that an award of costs ought to be made against the respondent. 64 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

Amount the Unsuccessful Party would Reasonably Expect to Pay 22 As set above, I find the hourly rates charged by the applicant father’s lawyers to be very low. Ms. Rogers is senior counsel and her hourly rate of $150 is very low. The amounts charged for disbursements are also very low. For example, photocopies are charged at $.10 per page. I was given no evidence from the respondent mother regarding the time spent or legal fees charged by the mother’s lawyer, whether or not paid directly by her, which I might use to compare those charged by the applicant’s lawyer. Also, no submissions were made on the part of the respondent mother respecting the amount of the fees being sought by the applicant father. 23 Based on the evidence and information before me, I find that it would be reasonable for the mother to expect that she would be required to pay some portion of the applicant’s costs and that the starting point of $3,657.86 would be viewed as extremely reasonable. I further find that, given the unreasonableness of her application for custody, the mother would reasonably expect to pay something toward the costs of her losing application as well as the costs of the applicant’s successful application that she contribute toward the support of their child. 24 I conclude that she would reasonably expect to pay at least partial indemnity (60%) costs.

Disposition 25 Accordingly, I award costs of $2,200.00 to be paid to the applicant father by the respondent mother. This amount is intended to be roughly 60% of the applicant father’s full indemnity costs. Again, given my findings of unreasonable and bad faith conduct, had the mother’s financial situation been different, I would have ordered the mother to pay costs on a substantial indemnity basis. Order accordingly. Tagseth v. Tagseth 65

[Indexed as: Tagseth v. Tagseth] Cindy Lynne Tagseth, Petitioner and Eric Arthur Tagseth, Respondent Saskatchewan Court of Queen’s Bench Docket: Saskatoon Div 569/05 2016 SKQB 66 A.R. Rothery J. Judgment: March 1, 2016 Family law –––– Support — Child support under federal and provincial guidelines — Variation or termination of award — Change in circumstances — Change in status as child of marriage –––– Parties were former spouses and parents of two children born in 1989 and 1997 — Eldest was no longer child of marriage — Youngest continued to live with mother and was student at university, enrolled in three courses — Father brought application to terminate child support on grounds that neither child was child of marriage — Application dismissed — Enrollment in three classes was minimum threshold to be considered full-time student at university — Child was full-time student at university and working towards reasonable career — Parents would have supported child with her post-secondary education if they were still married, as they did for older child — Father was responsible for establishing relationship with child — Child had made effort to see father, which he ignored, and could not be held solely accountable for having no relationship with father — Child remained child of marriage and father was responsible for her support — Father’s annual income for purposes of Federal Child Support Guidelines was $146,285 and mother’s annual income was $85,818 — Father was to pay mother child support for child in sum of $1,217 per month, retroactive to November 1, 2015 — Fa- ther’s proportionate share of s. 7 expenses for child’s tuition and books was $1,476, of which he had already paid $1,084 — Father’s obligation to pay child support terminated in August 2016 unless parties agreed on child support payments required for 2016-2017 university term or further order of court. Family law –––– Support — Child support under federal and provincial guidelines — Determination of award amount — Expenses for post-secondary education –––– Parties were former spouses and parents of two children born in 1989 and 1997 — Eldest was no longer child of marriage — Youngest continued to live with mother and was student at university, enrolled in three courses — Father brought application to terminate child support on grounds that neither child was child of marriage — Application dismissed — Enrollment in three classes was minimum threshold to be considered full-time student at uni- 66 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

versity — Child was full-time student at university and working towards reasonable career — Parents would have supported child with her post-secondary education if they were still married, as they did for older child — Father was responsible for establishing relationship with child — Child had made effort to see father, which he ignored, and could not be held solely accountable for having no relationship with father — Child remained child of marriage and father was responsible for her support — Father’s annual income for purposes of Fed- eral Child Support Guidelines was $146,285 and mother’s annual income was $85,818 — Father was to pay mother child support for child in sum of $1,217 per month, retroactive to November 1, 2015 — Father’s proportionate share of s. 7 expenses for child’s tuition and books was $1,476, of which he had already paid $1,084 — Father’s obligation to pay child support terminated in August 2016 unless parties agreed on child support payments required for 2016-2017 university term or further order of court. Cases considered by A.R. Rothery J.: Bishop v. Bishop (2006), 2006 SKQB 108, 2006 CarswellSask 187, 280 Sask. R. 284 (Sask. Q.B.) — considered Bradley v. Zaba (1996), 18 R.F.L. (4th) 1, (sub nom. Zaba v. Bradley) 137 Sask. R. 295, (sub nom. Zaba v. Bradley) 107 W.A.C. 295, 1996 CarswellSask 5, [1996] S.J. No. 5 (Sask. C.A.) — followed Hagen v. Rankin (2002), 2002 SKCA 13, 2002 CarswellSask 20, [2002] S.J. No. 15, 213 Sask. R. 257, 260 W.A.C. 257, 24 R.F.L. (5th) 38 (Sask. C.A.) — considered M. (S.L.) v. G. (J.R.) (2015), 2015 SKQB 60, 2015 CarswellSask 128 (Sask. Q.B.) — considered Olszewski v. Willick (2009), 2009 SKCA 133, 2009 CarswellSask 774, [2009] S.J. No. 694, 313 D.L.R. (4th) 635, 343 Sask. R. 247, 472 W.A.C. 247, [2010] 10 W.W.R. 666, 85 R.F.L. (6th) 295 (Sask. C.A.) — referred to Tagseth v. Tagseth (February 4, 2011), Doc. Saskatoon 569/05 (Sask. Q.B.) — referred to Statutes considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) s. 2(1) “child of the marriage” — considered Tariffs considered: Queen’s Bench Rules, Sask. Q.B. Rules 2013 Tariff of Costs, Sched. I “B”, column 2 — referred to Regulations considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Federal Child Support Guidelines, SOR/97-175 Generally — referred to Tagseth v. Tagseth A.R. Rothery J. 67

s. 3(2)(a) — considered s. 7 — considered

APPLICATION by father to terminate child support for two children of marriage.

Brent D. Barilla, Q.C., for Petitioner Russel P. Weber, for Respondent

A.R. Rothery J.:

1 The respondent former husband, Eric Tagseth [Eric], applies to terminate the child support order of December 6, 2011. Eric seeks a termination of the order effective February 1, 2012, for his older daughter Katelyn (born August 3, 1989) and effective October 30, 2015, for his younger daughter, Emilee (born October 29, 1997). The petitioner former wife, Cindy Tagseth [Cindy] concedes Katelyn is no longer a child of the marriage. However, because Emilee continues to live with her and is a first year student at the University of Saskatchewan, it is Cindy’s position that Emilee remains a “child of the marriage” as defined by s. 2(1)(b) of the Divorce Act, RSC 1985, c 3 (2nd Supp). 2 Eric’s principal objections to characterizing Emilee as a child of the marriage, even though she just turned 19 in October 2015, are as follows. First, she is only taking three classes, so she should not be considered a full-time student at university. Eric’s greater objection is that Emilee has unilaterally terminated her relationship with him, and on that basis, he should not be required to pay Cindy for Emilee’s support. 3 A review of the factors must be considered by the Court in determining whether Emilee is a child of the marriage. As a starting point, the Saskatchewan Court of Appeal in Bradley v. Zaba (1996), 18 R.F.L. (4th) 1 (Sask. C.A.) at para 10 [Bradley], outlines the various factors to be considered: 10 The application and cross-application raise a number of significant and controversial questions that can only be answered after establishing the necessary factual background. The first question is whether Clayton who is now a young man of 19 years in university qualifies as a “child” under the Act and if so, the extent of the legal obligation of each of his parents to contribute to his support. This question requires the Court to consider many factors including: whether the child is eligible for student loans or other financial assistance, whether the child has reasonable career plans, the ability of the 68 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

child to contribute to his or her own support through part-time employment, parental plans for the child’s education, particularly those made during cohabitation, and at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated his or her relationship with the parent from whom child support is sought. A further consideration is whether the child could have reasonably expected one or both of the parents to have continued to furnish support if the marriage had not broken down. 4 As stated in Bishop v. Bishop, 2006 SKQB 108 at para 12, 280 Sask. R. 284 (Sask. Q.B.), enrollment in three classes is the minimum threshold to be considered a full-time student at university. Thus, Emilee is enrolled in a full-time course of studies. Emilee lives with Cindy, and because of Cindy’s income, Emilee does not qualify for student loans. Entering first year university in Arts and Sciences cannot be said that Emilee does not have reasonable career plans. She is considering a career in the health sciences field, perhaps physiotherapy. She is taking a kine- siology class each semester. For the purposes of first year university, Emilee has shown she is working towards a reasonable career. 5 Emilee only completed high school in June 2015. She worked this past summer and intends to work the summer of 2016. She purchased her university books with her savings. Although Eric might expect her to work part-time during the university semester, her time may be better spent concentrating on her studies. Her average the first semester was 67 percent, which is a little lower than her high school average of 72 percent. Emilee likely would benefit from the extra time to study. 6 It is clear that both parents would have supported Emilee with her post-secondary education if they were still married. Indeed, they did just that with her older sister, Katelyn. Eric also has an RESP for his children’s education. Thus, subject to the issue of Emilee’s strained relationship with her father, the factors to be considered weigh in favour of concluding Emilee continues to be a child of the marriage. 7 As stated in Bradley, one factor to be considered is “in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated his or her relationship with the parent from whom child support is sought.” Bradley qualifies the child who has reached the age of 18 to be a “mature” child. That is, the child over the age of majority who has unilaterally terminated the relationship with the payor parent has done so with all the intellectual capacity of an adult. Tagseth v. Tagseth A.R. Rothery J. 69

8 Emilee is far from being a mature person. She is just 19 years of age. She has had difficulties over the years since her parents’ separation in 2006 with reconciling her relationship with Eric, starting as a nine-year- old and continuing on as a teenager. 9 Eric applied for access to Emilee in 2011 when she was age 13. He blamed Cindy for Emilee not wanting to see him. The fiat of February 4, 2011 (Tagseth v. Tagseth (February 4, 2011), Doc. Saskatoon 569/05 (Sask. Q.B.)), made it clear that Cindy was attempting to facilitate Eric’s access. The Court observed that Eric was the parent responsible for establishing a relationship with Emilee. 10 Eric’s efforts to do so since then have been less than stellar. There have been a few phone calls, Christmas cards and gifts. On Christmas 2015, Emilee sent a text to Eric thanking him for her gift. She suggested that they should go for coffee sometime in the new year. Eric has never followed up on that offer. 11 Eric’s counsel suggests that this offer by Emilee to have coffee together was a response to Eric’s application to terminate child support, served on Cindy’s counsel ten days earlier. It was an attempt by Emilee to re-establish her relationship with her father so that she would be entitled to child support. 12 We may never know Emilee’s reasons for the offer to see her father this past Christmas. But what we do know is that Eric never took this opportunity to rebuild their relationship. On these facts, Emilee, barely 19, who has struggled since a child with her relationship with her father, cannot now be held solely accountable for having no relationship with her father. 13 Even if Emilee’s behaviour could be described as unilaterally termi- nating her relationship with her father, case law is clear that the threshold for proving such unilateral termination is very high. This was recently reiterated in M. (S.L.) v. G. (J.R.), 2015 SKQB 60 (Sask. Q.B.) at para 36: [36] There is an obligation placed on parents of children in early adulthood to make significant efforts to reach out to them even when there is reluctance given in response. In Olszewski v Willick, 2009 SKCA 133, 343 Sask R 247, the Court of Appeal confirmed there is a high threshold when seeking to show a parent’s withdrawal from supporting a child is justified and made it clear that the unilateral nature of a withdrawal by the child from the relationship is an important factor to establish. This is an appropriate obligation as parents 70 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

have the benefit of many years of experience and thus the reasonable responsibility of being the ones who are expected to continue to reach out to their children. Fernquist v Garland, 2005 SKQB 519, 22 RFL (6th) 371 confirms that there is an expectation on parents to make considerable effort, and show sufficient attempts were made at being flexible. More recently in Fournier v Meyers, 2014 SKQB 283 [Fournier], Justice Wilson confirmed the high threshold that is required to establish a unilateral withdrawal which would justify the termination of support for children in university. 14 If the child’s unilateral termination of the relationship with the payor parent were actually made out, that remains but one of the factors for the Court to consider. See Olszewski v. Willick, 2009 SKCA 133 at paras 33- 34, 313 D.L.R. (4th) 635 (Sask. C.A.). On all the factors in this case, I find that Emilee remains a child of the marriage and that Eric is responsible to support her. 15 As stated in Hagen v. Rankin, 2002 SKCA 13, 24 R.F.L. (5th) 38 (Sask. C.A.), in situations where the child lives at home with one parent and attends post-secondary education, the presumptive rule is that the payor parent pays child support in accordance with s. 3(2)(a) of the Fed- eral Child Support Guidelines, SOR/97-175 [Guidelines]. It is appropriate to use this presumptive rule here. As well, the payor parent may be required to proportionally contribute toward the child’s tuition and books under s. 7 of the Guidelines, after consideration of the child’s contributions. 16 Eric’s annual income for the purposes of the Guidelines is $146,285, and Cindy’s annual income is $85,818. Eric is ordered to pay Cindy child support for Emilee in the sum of $1,217 per month, retroactive to No- vember 1, 2015. 17 Emilee has paid for her own textbooks. Tuition for the 2015-2016 university term is $2,333. The proportionate share of these s. 7 expenses payable by Eric is $1,476, of which he has already paid $1,084 to Cindy. Eric owes Cindy $392.00 for his remaining share. 18 Counsel for Cindy suggests that the child support order continue until further order of the Court. I disagree. Much may happen before Septem- ber 1, 2016. For example, Emilee’s summer employment will need to be considered in assessing s. 7 expenses. Eric’s obligation to pay child support of $1,217 per month terminates August 31, 2016, unless the parents are able to agree on the child support payments required for the 2016- 2017 university term or upon further order of this Court. Either parent Tagseth v. Tagseth A.R. Rothery J. 71

has leave to bring this matter before the Court for determination, if necessary. 19 Cindy is entitled to her costs on a party-and-party basis, in Column 2 for a contested matter, in the sum of $1,000.00. 20 Order accordingly. Application dismissed. 72 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

[Indexed as: Kawchuk v. Kovacs] Risa Irene Kawchuk, Plaintiff and James David Kovacs, Defendant Alberta Court of Queen’s Bench Docket: Calgary 4801-154253 2016 ABQB 118 A.D. Macleod J. Heard: November 26, 2015 Judgment: February 26, 2016 Family law –––– Domestic contracts and settlements — Enforcement — General principles –––– Parties separated after 13 years of marriage — They had two children — Parties entered into mediation/arbitration agreement — Agreement included waiver of right to litigate parties’ rights under various Acts, including Matrimonial Property Act — Agreement resolved all financial matters — Agreement was incorporated into arbitration award — Mother said that she had received incomplete disclosure and, in particular, statements and income tax returns of one of father’s companies — Mother claimed settlement was not final and was subject to verification after father’s records were produced — Fa- ther applied to enforce arbitration award and mother sought to set aside award — Father’s application granted; mother’s application dismissed — Mother was ably represented by counsel and generally familiar with father’s business affairs — Mother was director for one company and had access to its bank accounts — Mother had general information as to income of other company — Ultimate settlement was within reasonable range — There was no basis to set aside arbitration award. Cases considered by A.D. Macleod J.: Corbeil v. Bebris (1993), 49 R.F.L. (3d) 77, 105 D.L.R. (4th) 759, 141 A.R. 215, 46 W.A.C. 215, 1993 CarswellAlta 452, [1993] A.J. No. 587 (Alta. C.A.) — followed Statutes considered: Arbitration Act, R.S.A. 2000, c. A-43 Generally — referred to s. 35 — considered s. 36 — considered s. 37 — considered s. 38 — considered s. 40(1) — considered Kawchuk v. Kovacs A.D. Macleod J. 73

s. 43(1) — considered s. 44 — considered s. 45 — considered s. 45(1) — considered s. 45(1)(a)-45(1)(i) — referred to Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Generally — referred to Matrimonial Property Act, R.S.A. 1980, c. M-9 s. 38(1)(a)-38(1)(e) — referred to Matrimonial Property Act, R.S.A. 2000, c. M-8 Generally — referred to s. 37 — considered s. 38 — considered

APPLICATIONS by father to enforce arbitration award and by mother to set aside award.

Sean Moldowan, for Plaintiff Brendan Myers Miller, for Defendant

A.D. Macleod J.:

1 Mr. Kovacs (Dad) seeks to enforce an Arbitration Award against Ms. Kawchuk (Mom). Mom seeks to set it aside. 2 After thirteen years of marriage during which they had two children, Dad and Mom separated in September 2012. In April 2015, the parties entered into a mediation/arbitration agreement (the “Agreement”). The parties executed the Agreement after receiving independent advice from their respective lawyers in April. The mediator/arbitrator, Ms. Sherry Kachur Q.C., did not execute the Agreement until the day of the mediation on June 11, 2015. The Agreement includes a waiver of the right to litigate the parties’ rights under various acts including the Matrimonial Property Act, RSA 2000, c M-8 (the “MPA”). The issues to be resolved with Ms. Kachur included all issues between the parties including distribution of property, child support and spousal support. 3 Dad says he and Mom together with their respective lawyers and reached an Agreement, facilitated by Ms. Kachur, on June 11, 2015. The Agreement resolved all financial matters. Dad says that his lawyer, in the presence of Mom and her legal counsel, requested that Ms. Kachur incor- porate the terms of the Agreement into the Arbitration Award. He says Mom and her lawyer agreed that the terms of the Agreement were to be 74 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

incorporated into the Arbitration Award. On July 14, 2015, Ms. Kachur issued her Arbitration Award, following which counsel for Dad sent a settlement letter to Mom’s lawyer with a draft form of a Consent Order. Counsel for Dad requested that it be executed and sent back pursuant to the Agreement and section 36 of the Arbitration Act, RSA 2000, c A-43 (the “Act”). 4 On August 12, 2015, Mom’s lawyer sent a letter by fax to Ms. Kachur requesting further explanation of the basis for the Arbitration Award, and for correction pursuant to sections 40(1) and 43(1) of the Act. On August 20, 2015 the parties attended before Ms. Kachur, and Dad said she made it very clear that the Arbitration Award was a consent Award and, accordingly, she could not provide any reasons or make any corrections. This was confirmed in a letter dated September 18, 2015, from Ms. Kachur to counsel, which included the following: In his correspondence of August 12, 2015 Mr. Moldowan asked for some explanations or corrections. However, the explanation and corrections were not on the actual Arbitration Award but were a part of what was discussed in the identification process of the mediation. They are not actual corrections, such as a mathematical error, on the actual Arbitration Award. Mr. Moldwan’s comments provided in his August 12th letter deal with numbers that he believes should be changed on the property charts. The property charts were prepared with input from both parties during the mediation sessions. What numbers each party may have ultimately accepted to come to an agreement may have differed to arrive at the ultimate numbers. Again, this is not a correction to the Arbitration Award that Mr. Moldowan is seeking. Also, Mr. Moldowan comments that further disclosure is required. Again, the parties are at liberty to reach an agreement with the disclosure that they have or choose not to reach an agreement until further disclosure has been provided. Ultimately, an agreement was reached by the parties. This Award was not arbitrated but, in essence, is a Consent Order. I was a Media- tor on this file at that time. I did not make any determinations under law or fact as to what should have occurred. The parties ultimately agreed to a process to divide the property, deal with spousal support, and deal with retroactive child support. As it was a consent agreement there are no errors that I could correct in the Award. An error that I could correct would be the misspelling of the names, a typographical error of some sort, or incorrectly doing some math. Mr. Moldowan is not asking me to change or correct Kawchuk v. Kovacs A.D. Macleod J. 75

these types of errors. In mediation, I can look at the differences but, ultimately, if an agreement was reached and put into an Arbitration Award, I cannot make “changes” to the overall settlement. As such, I am not rejecting Mr. Moldowan’s requests pursuant to section 43(3) of the Arbitration Act; I am stating that he is not actually asking for corrections or explanations of reasons. I cannot give explanations of the reasons as I did not make the determination. This is a Consent Award. I cannot make corrections of any error because there are no “errors” in the Award to be corrected pursuant to Mr. Moldowan’s comments. 5 Mom says that she had received incomplete disclosure and, in particular, the statements and income tax returns of one of Dad’s companies. The parties agreed that they had not been prepared and were not available on the date of mediation. It is common ground between the parties that Dad had agreed to provide the information. What is not common ground is whether or not the settlement reached was subject to her reviewing that information when it became available. It is clear from the evidence that Dad, his counsel, and Ms. Kachur thought that the parties had settled matters, notwithstanding that disclosure was incomplete. Mom takes the opposite position. She says that she understood that the settlement would be “without prejudice” until she had reviewed the information that she was supposed to receive. She said in her affidavit: Neither my lawyer nor the Arbitrator informed me that the settlement was not subject to verification after the records were produced. 6 When questioned on her Affidavit, Mom confirmed her mistaken as- sumption that the settlement was not final. It appears that everyone else at the mediation, including her own lawyer, was aware that the parties had agreed on the financial terms of the settlement. Mom must have become aware of her misunderstanding shortly after receiving the Arbitra- tion Award on June 11, 2015. 7 If Mom did not in fact know that settlement discussions could result in a binding agreement, it would appear her counsel provided inadequate legal advice, as he was aware of the nature of the settlement. This poses a conflict between Mom and her counsel because, though he presented no evidence on this application, he continues to represent her. The conflict can only be resolved if Mom abandons her current position. 8 Upon discovering her mistake, Mom had two options. She could have claimed the entire process was null and void because of her misunderstanding, effectively repudiating the Agreement, or she could have waived that position and sought a remedy under the Act. In my view, in 76 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

consultation with her lawyer, Mom chose the latter. Indeed, her counsel’s position before me was that because she had not received the disclosure that was promised, she was effectively misled into resolving matters based on her understanding of what the disclosure was going to reveal. Moreover, she indicated that her understanding was due to Dad’s intentional misrepresentation. 9 As the mediator indicated, people frequently decide to enter into settlement negotiations without complete disclosure. It is not without risk, but it often leads to an expeditious settlement without which the parties would spend more time and money. 10 The relevant sections of the Act include the following: Mediation and conciliation 35(1) The members of an arbitral tribunal may, if the parties consent, use mediation, conciliation or similar techniques during the arbitration to encourage settlement of the matters in dispute. (2) After the members of an arbitral tribunal use a technique referred to in subsection (1), they may resume their roles as arbitrators without disqualification. Settlement 36 If the parties settle the matters in dispute during arbitration, the arbitral tribunal shall terminate the arbitration and shall record the settlement in the form of an award. Binding nature of award 37 An award binds the parties unless it is set aside or varied under section 44 or 45. Form of award 38(1) An award shall be made in writing and, except in the case of an award made under section 36 shall state the reasons on which it is based. (2) An award shall indicate the place where and the date on which it is made. (3) An award shall be dated and signed by all the members of the arbitral tribunal, or by a majority of them if an explanation of the omission of the other signatures is included (4) A copy of an award shall be served on each party. Kawchuk v. Kovacs A.D. Macleod J. 77

Setting aside award 45(1) On a party’s application, the court may set aside an award on any of the following grounds: (a) a party entered into the arbitration agreement while under a legal incapacity; (b) the arbitration agreement is invalid or has ceased to exist; (c) the award deals with a matter in dispute that the arbitration agreement does not cover or contains a decision on a matter in dispute that is beyond the scope of the agreement; (d) the composition of the arbitral tribunal was not in accordance with the arbitration agreement or, if the agreement did not deal with the matter, was not in accordance with this Act; (e) the subject-matter of the arbitration is not capable of being the subject of arbitration under Alberta law; (f) the applicant was treated manifestly unfairly and un- equally, was not given an opportunity to present a case or to respond to another party’s case, or was not given proper notice of the arbitration or of the appointment of an arbitrator; (g) the procedures followed in the arbitration did not comply with this Act or the arbitration agreement; (h) an arbitrator has committed a corrupt or fraudulent act or there is a reasonable apprehension of bias; (i) the award was obtained by fraud. 11 I am satisfied that the parties entered into the Agreement pursuant to the Act and that the Act applies to the Agreement. Under section 35, the Arbitrator is able to use mediation, conciliation or similar techniques during the arbitration. Section 36 provides that if the parties settle the matters in dispute during the Arbitration, the Arbitrator shall terminate the process and record the settlement in the form of an Award, which is what Ms. Kachur did. That Award binds the parties unless it is set aside or varied under section 44 or 45. 12 Section 44 applies in case of an appeal, but the Arbitration Award in this case is not an Award on the merits. Rather it is a consent Award, for which there is no appeal mechanism in the Act. 78 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

13 Section 45 provides for grounds upon which this Court may set aside an Award, but I find that none of the sub paragraphs (a) to (i) apply. The procedures followed by these parties complied with the Act and the Agreement. I find that Mom was treated fairly and was given every opportunity to present her case and respond to Dad. 14 As a matter of policy, this Court encourages settlement of matrimonial disputes through mediation and promotes dispute resolution outside of the Court process. It makes little sense to undermine this policy by allowing those unhappy with the results to avoid them by arguing that they did not know the nature of the process. This is particularly true when those parties are represented by counsel. Not only was Mom ably represented by counsel, she was generally familiar with her husband’s business affairs. She was a director for one of the companies and had access to its bank accounts. She also had general information as to the income of the other company. It would not have been surprising to anyone familiar with this case and the mediation process that the parties seized upon the opportunity to settle the matter on June 11, notwithstanding incomplete disclosure. Moreover, the ultimate settlement was within a reasonable range. There is no basis to set aside the Arbitration Award under section 45. 15 Given my findings, it in unnecessary to deal with arguments about the failure to comply with time requirements under the Act. 16 Finally, Mom relies upon the formal requirements of sections 37 and 38 of the MPA. There is no question that the Agreement provided for the resolution under the Act and the Divorce Act, RSC 1985, c 3, by way of arbitration/mediation. There is also no question that the parties both received independent legal advice and that paragraphs 38(1)(a-e) of the Act were complied with. The object of the MPA as described by the Alberta Court of Appeal at para 32 of Corbeil v. Bebris, [1993] A.J. No. 587, 141 A.R. 215 (Alta. C.A.), was clearly met. Mom’s counsel conceded during argument that, had arbitration been conducted, the Arbitration Award would not have attracted scrutiny under sections 37 and 38. But I do not think that distinction is meaningful. Both the Act and the Agreement contemplate the eventuality of settlement. 17 Accordingly, Mom’s appeal and her application to set aside the Arbi- tration Award are dismissed. Dad’s application to enforce the Arbitration Award as set out by Ms. Kachur is granted. Kawchuk v. Kovacs A.D. Macleod J. 79

18 Dad has claimed solicitor client costs based on the Agreement. While the issue was addressed, the amount was not. Since amounts matter, I invite counsel to address the issue further. Application by father granted; application by mother dismissed. 80 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

[Indexed as: Macan v. Freure] Mira Macan, Applicant and Douglas A. Freure, Respondent Ontario Superior Court of Justice Docket: FC-12-539-01 2016 ONSC 1437 J.P.L. McDermot J. Judgment: February 26, 2016 Family law –––– Costs — In family law proceedings generally — Scale of costs –––– Parties were parents of child — Mother was registered owner of cottage — Father claimed mother held cottage in trust for child and claimed resulting trust in cottage on own behalf — Mother brought successful motion for order permitting sale of cottage — Office of Children’s Lawyer (OCL) represented child on motion — Hearing was held to determine costs — Mother awarded costs of $1,600 from father; OCL awarded costs of $4,400 from father — As successful, self-represented litigant, mother was entitled to costs of motion from father — Mother claimed costs of $3,000 for preparing and filing materials and attending court based on $50 per hour for 80 hours preparing materials and $20 per hour for 70 hours filing materials and attending court, but it could not be said what portion of time claimed would be time spent by lawyer and what time would be spent as client or rationale behind difference in hourly rates for tasks — As mother served no offer to settle, she would only be entitled to partial recovery costs if represented — Eighty hours for preparation of materials was excessive — Twenty hours was maximum to be allowed for preparation of materials — Mother was also entitled to costs for numerous adjournments — Mother was awarded $1,600 for costs and disbursements, including gas and mailings. Family law –––– Costs — Family property applications — General principles –––– Parties were parents of child — Mother was registered owner of cottage — Father claimed mother held cottage in trust for child and claimed resulting trust in cottage on own behalf — Mother brought successful motion for order permitting sale of cottage — Office of Children’s Lawyer (OCL) represented child on motion — Hearing was held to determine costs — Mother awarded costs of $1,600 from father; OCL awarded costs of $4,400 from father — General award of costs to OCL from net sale proceeds meant mother or daughter might end up paying part or all of OCL’s costs — It made no sense to award successful parties costs only to order costs against them — It would also not make sense for daughter to bear costs award out of her share of net proceeds Macan v. Freure 81

as she was successful litigant and purpose of costs would be to indemnify her legal costs borne through OCL. Civil practice and procedure –––– Costs — Persons entitled to or liable for costs — Unrepresented party –––– Parties were parents of child — Mother was registered owner of cottage — Father claimed mother held cottage in trust for child and claimed resulting trust in cottage on own behalf — Mother brought successful motion for order permitting sale of cottage — Office of Children’s Lawyer (OCL) represented child on motion — Hearing was held to determine costs — Mother awarded costs of $1,600 from father; OCL awarded costs of $4,400 from father — As successful, self-represented litigant, mother was entitled to costs of motion from father — Mother claimed costs of $3,000 for preparing and filing materials and attending court based on $50 per hour for 80 hours preparing materials and $20 per hour for 70 hours filing materials and attending court, but it could not be said what portion of time claimed would be time spent by lawyer and what time would be spent as client or rationale behind difference in hourly rates for tasks — As mother served no offer to settle, she would only be entitled to partial recovery costs if represented — Eighty hours for preparation of materials was excessive — Twenty hours was maximum to be allowed for preparation of materials — Mother was also entitled to costs for numerous adjournments — Mother was awarded $1,600 for costs and disbursements, including gas and mailings. Cases considered by J.P.L. McDermot J.: Fong v. Chan (1999), 1999 CarswellOnt 3955, [1999] O.J. No. 4600, 46 O.R. (3d) 330, 181 D.L.R. (4th) 614, 128 O.A.C. 2 (Ont. C.A.) — considered Jordan v. Stewart (2013), 2013 ONSC 5037, 2013 CarswellOnt 11295 (Ont. S.C.J.) — followed Serra v. Serra (2009), 2009 ONCA 395, 2009 CarswellOnt 2475, 66 R.F.L. (6th) 40, [2009] O.J. No. 1905 (Ont. C.A.) — followed Statutes considered: Courts of Justice Act, R.S.O. 1990, c. C.43 s. 89(4) — referred to Rules considered: Family Law Rules, O. Reg. 114/99 R. 24(1) — considered R. 24(4) — considered R. 24(6) — considered R. 24(11) — considered

HEARING to determine costs.

Applicant, for herself 82 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

Respondent, for himself Judith Turner, for Office of the Children’s Lawyer

J.P.L. McDermot J.: Introduction 1 On October 29, 2015 I heard an argued motion regarding the sale of a cottage property. That cottage property is in the name of the Applicant and moving party, Mira Macan. The Respondent Douglas Freure objected to the sale, relying on the fact that he had an interest in the property through efforts expended by him on the cottage, as well as the cottage having a unique value to him and his daughter. 2 Prior to hearing the motion, Mr. Freure submitted that the property was held in trust for the parties’ daughter, Rebecca Freure who lives with Ms. Macan. As a result of this submission, I ordered that the Office of the Children’s Lawyer be notified of this motion. After several adjournments the Children’s Lawyer appointed counsel to represent Rebecca Freure regarding her property interests.1 That lawyer was Judith Turner who supported the position of the Applicant Mira Macan. 3 Ms. Macan was ultimately successful on the motion. The property was ordered to be sold with the net proceeds to be paid into court. The proceeds of the cottage property are net of an execution registered against Mira Macan to be paid from the proceeds of sale. That execution represents the portion of the purchase price of the cottage which should have been secured by way of a mortgage back which was never registered when the property was purchased. 4 Ms. Macan requests costs to be paid by Mr. Freure. She does so as the successful party. 5 Ms. Turner on behalf of the Office of Children’s Lawyer also requests costs. She effectively asks that costs be paid from the net proceeds of the cottage property which means that costs would payable by one of the potential owners of the cottage property. Those potential owners are Mr. Freure, who claims a resulting trust interest in the property, Rebecca Freure who the OCL represents and for whom the property is held in trust and Ms. Macan who is the titled holder of the property.

1 The Office of the Children’s Lawyer had already provided representation regarding the custody and access issues placed by the parties before the court in these family law proceedings. Macan v. Freure J.P.L. McDermot J. 83

6 Mr. Freure has filed no costs submissions either in favour of costs payable to him or in opposition to the costs submissions filed by Ms. Macan and the counsel for the OCL.

Costs of Mira Macan 7 Ms. Macan requests costs of $3,000 plus disbursements of $569.82. She says that she is entitled to costs for preparing materials, filing materials and attending at the motions and the various adjournments in this matter. 8 Of the disbursements claimed by Ms. Macan, $480 consists of fuel expenses for driving back and forth to court in Barrie. A further $89.82 is the cost of mailings which presumably are the costs of serving documents in respect of this motion. 9 Ms. Macan did not file an offer to settle with her materials and I therefore presume that she did not make a formal offer to settle the motion. 10 Under Rule 24(1) of the Family Law Rules,2 costs follow the event and a successful party is presumed to be entitled to costs. I may take into account unreasonable conduct by a party under Rule 24(4). If success is divided I may apportion costs as appropriate: see Rule 24(6). Under Rule 24(11) in fixing the amount of costs I am to take into account the “importance, complexity or difficulty of the issues” as well as the “time properly spent on the case including conversations between the lawyers and party or witnesses, drafting documents and correspondence, attempts to settle, preparation for a hearing, argument and preparation and signature of the order.” 11 Self-represented litigants are entitled to costs in proceedings “calculated on the same basis as those of the litigant who retains counsel”. The basis for assessment of costs of a self-represented person is the “loss of time through their involvement in the legal process.” The allowance for time should be “moderate” or “reasonable” but should not be for anything more than the “time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation”: Fong v. Chan, [1999] O.J. No. 4600 (Ont. C.A.) at para. 26. The claim by a self-represented litigant, in other words, would be for work “otherwise done by counsel or that she

2 O. Reg. 144/99 84 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

may have been charged for had she been represented”: Jordan v. Stewart, 2013 ONSC 5037 (Ont. S.C.J.) at para. 44. 12 Ms. Macan was successful on the motion. They cottage property was ordered to be sold. She is therefore entitled to her costs of the motion payable by Mr. Freure. 13 Ms. Macan requests payment for 150 hours of time that she has spent working on this motion. She says she spent 80 hours preparing materials, 10 hours filing materials and 60 hours in court. She claims $50 per hour for preparation of materials but only $20 per hour for the filing of materials and attendance at court. 14 It is difficult for me to determine what portion of her time claimed would be time spent by a lawyer and what portion of the work claimed would be time that she would have spent as a client in reviewing, signing materials and attendances in court. It is also difficult for rationalize the hourly rate that she is charging for the various activities set out in Ms. Macan’s costs submissions. I do not understand the difference between the hourly rate for preparation of materials as opposed to the lower hourly rate for attendance in court. 15 The total amount of time claimed is $3,000. Ms. Macan did not serve an offer to settle; were she represented by counsel she would have therefore been entitled only to partial recovery costs. As well, had a lawyer claimed 80 hours for preparation of the materials that were filed I would have disallowed a good portion of those hours as the amount of hours is excessive considering the materials reviewed by me for the motion. There was a Notice of Motion and a number of affidavits and I would probably have allowed only 20 hours of time or so for preparation of materials at the maximum. 16 There were numerous adjournments in this matter. One attendance was in order to serve the Children’s Lawyer due to the trust claim of Rebecca, something not raised by the Applicant although perhaps it should have been raised by her considering it was her statement at an examination which confirmed that the property was held in trust for Re- becca. One other adjournment was at the request of the Office of Chil- dren’s Lawyer so that they could determine whether they would become involved. That adjournment request was objected to by Ms. Macan. Ms. Macan is entitled to her costs of the various appearances necessary to resolve the motion. 17 I allow the disbursements claimed by Ms. Macan for gas and for mailings. Macan v. Freure J.P.L. McDermot J. 85

18 Taking the disbursements into account I allow Ms. Macan a total amount of costs in the amount of $1,600 inclusive of disbursements. Those costs are payable by Mr. Freure within 60 days. If not paid within that period of time, they are payable from any share of the net proceeds of the cottage property found to be owing to Mr. Freure.

Costs of the Children’s Lawyer 19 Counsel for the OCL also requests costs. Ms. Turner asks for $6,405 for fees plus HST of $832.65. Disbursements are $66 plus $4.55 for HST. The total amount claimed by counsel for the Office of the Chil- dren’s Lawyer on a full indemnity basis is $7,308.20. 20 No offer to settle was served by the Office of Children’s Lawyer on Mr. Freure. 21 OCL counsel supported Ms. Macan’s position that the cottage property be sold and that the money be paid into trust. Counsel was helpful on the motion in identifying and clarifying the issues and as well in as- sisting in argument. Certainly the fact that counsel for Rebecca wished the property to be sold made a substantial difference to the position of Mr. Freure who argued that the property should be preserved for Rebecca in the future. 22 There is jurisdiction for awarding costs to the Office of Children’s Lawyer: see s. 89(4) of the Courts of Justice Act.3 The OCL was, along with Ms. Macan, successful in this motion. As there is a presumption that the successful party is entitled to costs and as Mr. Freure has filed no submissions in opposition to the claim for costs by the OCL, there shall be an award of costs for the motion in favour of the Office of the Chil- dren’s Lawyer. 23 This leaves two issues outstanding: • How should the costs be paid or secured? • What is the amount of costs to be assessed?

1. How should the costs be paid or secured? 24 Ms. Turner on behalf of the OCL suggests that the costs be payable “out of the sales proceeds of the [cottage] property”. Ms. Macan in her reply submissions takes exception to this. She suggests that costs be

3 R.S.O. 1990, c. C.43 86 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

awarded against Douglas Freure only and should only be taken out of his share of the net proceeds of the cottage property. 25 It appears to be the position of Ms. Turner that the costs be paid from the sale proceeds of the cottage property irrespective of who is found to be an owner of the property. As noted in my Endorsement on the motion there are three competing claims for the cottage property and perhaps four. These are the claims of Mr. Freure under the doctrine of resulting trust, the claim of Ms. Macan who is the titled owner of the property and lastly, the trust claims of Rebecca Freure and Emily Freure, the two daughters of Mr. Freure. 26 There are three purposes of an award of costs as set out in Jordan v. Stewart, at para. 98, as well as Serra v. Serra, 2009 ONCA 395 (Ont. C.A.) which are as follows: 1. To partially indemnify successful litigants for the costs of litigation; 2. To encourage settlement; and 3. To discourage and sanction inappropriate behaviour by litigants. 27 To make a general award of costs from the net sale proceeds of the home may mean that Ms. Macan and Rebecca Freure may end up paying part or all of the costs of the OCL. 28 Both Ms. Macan and Rebecca Freure were successful in this motion. It would make no sense to award costs to Ms. Macan as above and then to order costs against her as this would not serve to indemnify Ms. Ma- can as a successful litigant. As well it would not make sense for Rebecca Freure to bear the costs award out of her share of the net proceeds as she is a successful litigant and the purpose of costs would be to indemnify her legal costs borne through the OCL. 29 If the purpose of this costs award is to encourage settlement, this again was not an issue between Ms. Macan and the Office of the Chil- dren’s Lawyer who were on the same side of the litigation or of the motion. There were also no settlement issues between the Office of the Chil- dren’s Lawyer and their young client Rebecca Freure. 30 Thirdly, the purpose of costs is to discourage and sanction inappropriate behaviour by litigants. The only inappropriate behaviour in this situation was that of Mr. Freure who took a position that he wished to avoid a sale of the cottage property for the benefit of his daughter while never having allowed his daughter any recent opportunity to use that cottage property. Mr. Freure also had not been paying the costs of the cottage Macan v. Freure J.P.L. McDermot J. 87

property. His behaviour was inappropriate. Ms. Macan’s behaviour was not. As such she should also not be forced to bear the costs of this litigation. 31 Accordingly, the costs of the Office of the Children’s Lawyer in this matter are awarded against Mr. Freure only. They shall be paid only from his share, if any, of the net proceeds of the cottage property.

2. What is the appropriate quantum of costs in this matter? 32 As stated, the Office of the Children’s Lawyer requests costs in the amount of $7,308.20 inclusive of disbursements and HST. 33 The hourly rate set out in the costs submissions, being $350 per hour, is an appropriate hourly rate for both counsel involved in this matter. Total hours expended were 18.3 hours; again this was a reasonable amount of time for counsel to have spent in this matter considering that no materials were prepared by the Office of Children’s Lawyer. 34 Costs should be assessed on a partial recovery basis as no offers to settle were exchanged and there is no allegation of bad faith conduct or other factors which would lead to a full recovery award of costs other than the fact that counsel have reduced their hourly rates. 35 The OCL shall have its costs in the amount of $4,400 inclusive of disbursements of HST payable by Douglas Freure within 60 days. If not paid within 60 days, those costs may be recovered from Mr. Freure’s share of the sale proceeds of the cottage property. 36 The order shall therefore read as follows respecting the costs award in favour of the OCL: 1. This court orders that the costs of the Office of the Chil- dren’s Lawyer be fixed in the amount of $4,400. Such costs are payable within 60 days and may be paid to the solicitor for the Office of the Children’s Lawyer, Stewart, Esten LLP. If they are not paid within 60 days, they may be paid out of Douglas Freure’s share of the sale proceeds, if any, of the real property registered in the name of Mira Macan and legally described as PIN 52185-0331 being Pcl 9409 SEC SS; PT Island B704 AKA McLaren Island in the Georgian Bay in front TWP of Cowper being summer resort location D.A. 38; The Archipelago, District of Parry Sound. Costs awarded. 88 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

[Indexed as: H. (P.A.) v. H. (K.M.)] P.A.H., Claimant and K.M.H., Respondent British Columbia Supreme Court Docket: Courtenay E3169 2016 BCSC 56 Bruce J. Heard: December 14-15, 2015 Judgment: January 15, 2016 Family law –––– Custody and access — Factors to be considered in custody award — Conduct of parent — General principles –––– Parties were married for 14 years and had one child who was five years old — Mother had been child’s primary caregiver throughout marriage — There was high level of conflict between parties and they constantly disputed parenting arrangements for child — Father was practicing Jehovah’s witness who criticized mother for being lapsed Jehovah’s witness — Father taught his religious beliefs to child, who began to treat mother with disrespect — Mother had relocated 40 kilometres away from city where parties lived during marriage, which increased conflict between parties — Mother had remarried, which also caused conflict to esca- late — Child started to exhibit problems in school — Father applied for order respecting parenting arrangements for child and to change school child attended — Application granted in part — Father continued to be uncooperative and he continued to treat mother and her husband with disrespect — Father shared negative views with child, who also showed disrespect toward mother and stepfather — Father would only communicate with mother by text message but his messages were rude and abusive — Ongoing and well-entrenched problems between parties had adversely affected psychological well-being of child — Father was unable to co-parent child in responsible and reasonable manner — It was necessary to define parenting arrangement to insulate child from acrimony between parties — It was in best interests of child to limit father’s parenting time in order to promote child’s well-being and emotional health and to restore proper relationship between child and mother — Father was to have parenting time with child every other weekend and mother was to have child at all other times, except for specified vacation and holiday times — Father was not to provide religious instruction to child or permit child to attend religious services, as father’s religious instruction was alienating child from mother — It was not in child’s best interests to change schools. H. (P.A.) v. H. (K.M.) Bruce J. 89

Statutes considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Generally — referred to Family Law Act, S.B.C. 2011, c. 25 Generally — referred to s. 37 — considered s. 40(4) — considered s. 41 — considered s. 211 — considered Rules considered: Supreme Court Civil Rules, B.C. Reg. 168/2009 App. B, s. 2(2)(b) — referred to

APPLICATION by father for order respecting parenting arrangements for child and to change school child attended.

Claimant, for himself Respondent, for herself

Bruce J.: Introduction 1 This is a claim under the Family Law Act, S.B.C. 2011, c. 25 [FLA] and the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), for an order respecting the parenting arrangements for the parties’ child (C.H.), who was born on October 5, 2010. He is currently five years old. The claimant also seeks an order varying the school that C.H. attends. Although the notice of claim and counterclaim filed by the parties sought additional orders, all of the issues in dispute, apart from parenting arrangements and the child’s school, have been resolved by agreement or by order of the Court. 2 During the hearing, the claimant acknowledged much of the respondent’s evidence was accurate and, further, he admitted that his behaviour had been inappropriate on a number of occasions. The claimant also introduced into evidence hundreds of text messages that demonstrated a disrespectful attitude towards the respondent and her new spouse. During the claimant’s testimony at the trial he also demonstrated a lack of respect for the respondent by failing to answer her questions in cross-examination in a straightforward manner. Where the claimant and the respondent had different recollections of the events, I preferred the respondent’s evidence as more reliable and credible. 90 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

Material Facts 3 The parties were married on May 8, 1999 and during the marriage they resided in Courtenay, B.C. Both parties also work in Courtenay. The claimant is currently a manager of a local store and the respondent works for WorkSafe BC. When C.H. was born the respondent took an extended maternity leave and returned to work part time after about one year. She was the primary caregiver for the child throughout their marriage. 4 When the parties separated in August 2013, the respondent moved to a nearby home in Courtenay. The claimant remained in the former matrimonial home and his mother came to live with him. At first the parties had a relatively amicable relationship after separation. The claimant was content to visit with C.H. one or two evenings each week after work in light of his young age and attachment to his mother. C.H. was not yet three years old when the parties separated. 5 By the late fall of 2013, the claimant began having C.H. stay with him overnight on Mondays and Tuesdays and every second Saturday. The claimant’s mother also provided childcare for C.H. during two weekdays while the respondent was at work. 6 The claimant quickly became dissatisfied with this parenting schedule and continually pressed the respondent to agree to an equal sharing of their time with C.H. The respondent resisted this proposal because she believed that C.H. was too young and appeared to be regressing socially after his visits with the claimant. 7 In or about January 2014, the respondent advised the claimant that she wished to take a job in Nanaimo and this would require a change in her residence. The claimant objected to this proposed move and immediately commenced this action. He sought an interim order that would preclude the respondent from moving C.H. out of Courtenay. On February 24, 2014, Masuhara J. issued an order that precluded both parties from changing C.H.’s residence “from the Comox Valley, B.C.” without the consent of the other party or by court order. 8 As a result of this order, the respondent turned down the job in Nanaimo and continued to work in Courtenay. The parties’ respective parenting time continued as before the action was filed. 9 On or about March 31, 2014, the parties entered into an interim arrangement regarding parenting time with C.H. The schedule was set on a two-week rotation. In the first week the claimant had parenting time with C.H. from Friday after work at 3:00 p.m. to Tuesday at 3:00 p.m. and in H. (P.A.) v. H. (K.M.) Bruce J. 91

the second week the claimant had parenting time with C.H. Tuesday overnight until Wednesday at 3:00 p.m. In addition, the claimant’s mother continued to provide childcare for C.H. on Tuesdays and Wednesdays while the parties were at work. The respondent had parenting time with C.H. the balance of the time. 10 After a Judicial Case Conference (“JCC”) on May 6, 2014, the parties consented to an order that the claimant would pay child support of $327 per month on a without prejudice basis. That order remains in place. Prior to this date the claimant did not pay child support or a share of the child’s extraordinary expenses. The parenting time arrangement did not change as a result of the JCC. 11 Despite the parties’ interim agreement regarding parenting time, there continued to be disputes about many aspects of the arrangement. The parties were unable to co-parent C.H. without engaging in argumentative behaviour. I would characterize the parties’ relationship as one of high conflict. The claimant is a practising Jehovah’s Witness and his religious beliefs led to criticism of the respondent for being a lapsed Jehovah’s Witness. The claimant taught his religious beliefs to C.H., who began treating the respondent with disrespect due to his father’s views of her as an adulterer. C.H. was taught that his mother would not be permitted to enter the House of God with him when she passed on. This caused the child great concern. 12 The claimant appeared to harass the respondent with complaints about her care of C.H. He contacted the police and the Ministry of Chil- dren and Family Development with what must be characterized as minor issues regarding the child’s care. The claimant continually harassed the respondent in text messages and he was unable to resolve even the most minor parenting issue amicably. 13 In the fall of 2014, the respondent relocated to Bowser but continued to work in Courtenay. This caused an enormous problem between the parties because Bowser is about 6 kilometres outside of the Comox Val- ley, and almost 40 kilometres from Courtenay. Although the claimant believed that the respondent’s relocation violated the order of Masuhara J., he did not seek a determination by the court. Instead, he continually complained to the respondent about her behaviour and refused to cooperate with regard to the selection of a transfer location for the parenting schedule. It took many months for the parties to agree to Union Bay as the transfer location. The transfers continue to be problematic because the parties cannot be civil with each other when the exchange occurs. 92 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

14 For some time in 2014, the respondent had been dating Mr. W. She chose not to disclose his identity to the claimant because of a concern that he would not react well to the news that she was dating. However, the claimant knew of Mr. W. because of what C.H. had told him and he pressed the respondent to disclose her relationship. Throughout 2014 the claimant’s behaviour towards the respondent worsened, likely because he knew that she was now dating. 15 In October 2014, when the respondent wanted to take C.H. out of the country to attend her brother’s wedding, the claimant continued to deny his consent until one week prior to their departure. It was also about this time that the respondent formally advised the claimant of her relationship with Mr. W. As she predicted, the claimant sent text messages to the respondent accusing her of living an immoral life and threatening to in- form the church elders of her misconduct. At Christmas 2014, the claimant adopted Mr. W.’s Christian tradition of having a tree and presents from Santa Claus. In response, the claimant aggressively attacked her behaviour as immoral and sacrilegious. Unfortunately, the claimant shared these beliefs with C.H. who again criticized his mother’s actions. 16 In January 2015, the parties returned to court and on February 19, 2015, Fleming J. issued an order concerning many of the issues in dispute. The parties were granted interim joint custody of C.H. and on an interim basis they were to share the parenting responsibilities defined by s. 41 of the FLA. The claimant was ordered to have interim parenting time with C.H. on a two-week rotating schedule as follows: a. Every second weekend from after work on Friday afternoon until Tuesday afternoon; b. On alternating weeks from Monday morning until Tuesday afternoon; c. The Claimant shall have the option to exercise additional parenting time on alternating Fridays when it is not his weekend with [C.H.] from after he finishes work until 7:00 p.m.; d. The parties shall cooperate in arranging pick up and drop off on the alternating Friday afternoon parenting time; and e. Additional parenting time as agreed between the parties. 17 The order also provided for sharing parenting time during holidays on an interim basis as follows: a. Each party may have a maximum of one week of parenting time during each of July and August for vacations; b. The one week periods must be agreed upon by May 1; H. (P.A.) v. H. (K.M.) Bruce J. 93

c. Each party’s week of vacation time is not to follow or be followed by that party’s regular parenting time; ... 18 The respondent was to have parenting time with C.H. at all other times not provided in the order. 19 The claimant did not appear to address the issue of the respondent’s relocation during the January 2015 hearing, apart from an application to have C.H. attend school in Courtenay. It was the respondent’s plan to enroll C.H. in kindergarten at Bowser Elementary, which is a short distance from her new residence. The order of Fleming J. provided that if the parties were unable to agree upon C.H.’s school, they were to set down an interim hearing on this issue by August 1, 2015. There was no interim hearing set down and the parties addressed this issue before me. 20 The acrimony between the parties, as evidenced by their text messages, and the incidents that occurred during the transfers of the child, continued to be a problem despite the order of Fleming J. regarding an interim parenting schedule. The claimant insisted upon strict compliance with what he regarded as the proper interpretation of the order and refused to cooperate with any reasonable request by the respondent concerning the parenting schedule. 21 The claimant continued to threaten the respondent with the police if she deviated from the schedule in the order and, indeed, contacted the police when a disagreement led to the respondent denying him parenting time on one Friday evening. This was an occasion when the claimant agreed that he had caused the dispute by failing to explain his circumstances to the respondent. The respondent had seen the claimant driving through Bowser. She called him and asked him to pick up C.H. at her home so that she would not have to drive the significant distance to the transfer location at Union Bay. He refused and said that he would be at Union Bay at 4:00 p.m. The claimant failed to explain that his vehicle was full of items that he was moving and thus there was no room for the child to sit. The respondent felt that the claimant was acting unreasonably and refused to drive the child to Union Bay. This is the only occasion that the respondent denied the claimant parenting time on the Friday evenings. 22 In July 2015, the respondent remarried and this exacerbated the conflict between her and the claimant. The claimant referred to Mr. W. as the respondent’s tenant or her lover and was quite disrespectful of him in his text messages. The respondent was also approached by elders from the Jehovah’s Witness church, likely based on information that they had 94 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

received from the claimant about her adulterous lifestyle. The claimant also involved C.H. in the conflict by his instructions to C.H. that Mr. W. was not a real parent and thus C.H. could not be disciplined by his stepfather. The child’s attitude became very disrespectful of his stepfather and his mother due to the views about their lifestyle that the claimant had shared with him. 23 The order of Fleming J. also included that a custody and access report be completed pursuant to s. 211 of the FLA. The report was to address C.H.’s circumstances; each party’s parenting capacity; and a parenting plan appropriate to C.H.’s needs. The parties agreed to Dr. Brenda Mc- Creight as the author for the s. 211 report. She has a degree in Social Work, a Master’s degree in Counselling Psychology, and a Doctorate in Mental Health Counseling. She has completed over 300 reports for the Court, has testified as an expert in child health and behaviour, and has authored several books on childhood behavioural disorders. 24 Dr. McCreight’s first report was issued on July 22, 2015. In preparation for her report, Dr. McCreight interviewed and administered a battery of psychological tests to the claimant, his mother, the respondent, Mr. W. and Mr. W.’s daughter, E.W., to assess their parenting capacity. The parenting stress index, the substance abuse screening inventory, the personality assessment inventory, and the STAXI 2 anger scale revealed no parenting concerns with respect to any of these individuals. All of these persons were interviewed in context with C.H. and all of the affidavit materials filed in the various applications to this Court were also reviewed by Dr. McCreight. 25 Although the respondent maintained that the reason for her separation from the claimant was his abuse of alcohol and the consequential emotional abuse of her during bouts of alcoholism, Dr. McCreight’s testing results did not reveal any parenting concerns related to alcohol abuse on the claimant’s part. I accept Dr. McCreight’s test results eliminate alcohol abuse as a factor in determining the appropriate parenting time arrangement for C.H. The claimant may well have abused alcohol during the marriage, but this issue does not appear to be a problem at present insofar as parenting C.H. is concerned. Accordingly, it is not appropriate for the Court to take the allegation of alcoholism into account in determining the issues before me. H. (P.A.) v. H. (K.M.) Bruce J. 95

26 Dr. McCreight made the following observations about C.H. at page 15 of her report: [C.H.] presented as an active, articulate, and curious child who displayed healthy attachment behaviours with each parent. He played both indoors and outside while I was at [K.’s] home and he was active with his pets at [P.’s] home. In my office, [C.H.] explored the toys and was most interested in the cars and age appropriate craft materials. [C.H.] demonstrated mild limit testing and responded well to parental intervention by both [P.] and [K.]. With regards to parenting, each party was able to demonstrate a strong capacity to parent during this assessment. [C.H.] was very comfortable with the adults in both homes and he demonstrated a sense of security and belonging in each home. ... The marital discord and final separation has resulted in many changes in [C.H.’s] life but he appears to be happy and well-adjusted in both homes. At transitions, however, [C.H.] has presented tears and resistance to leaving both parents which may be attributed to separation anxiety, or, to anticipation of witnessing hostility by one or both parents at the time of transition. At this time, [C.H.] is facing a major milestone as he begins kindergarten in the fall. [C.H.] has not previously attended pre-school so this is a significant change in his life. As already stated, [C.H.] has experienced a great deal of change and tumult due to the marital stress of his parents and he is now having the first stable year, although it continues to be marred by the alleged negative statements that [P.] says in front of [C.H.] at transitions. 27 Dr. McCreight recommended that C.H. be the subject of a parenting plan that provided the least disruption due to the major change in his life that was about to occur. In light of the distance between the parties’ resi- dences, the proximity of Bowser Elementary school to the respondent’s home in Bowser, and the need to limit life changes for the child as much as possible, Dr. McCreight opined that C.H. should attend a school in Bowser and, further, that the parenting regime should stay close to the current schedule. In this regard, Dr. McCreight recommended a four- week rotating schedule as follows: Week 1 The claimant to have parenting time from Friday after school until Sunday at 5:00 p.m. The respondent to have parenting time from Sunday at 5:00 p.m. until the following Friday after school. 96 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

Week 2 Repeat week 1. Week 3 The claimant to have parenting time with C.H. on Thursday after school until 7:00 p.m. The respondent to have parenting time with C.H. on Monday, Tues- day, Wednesday and Thursday morning and resume after 7:00 p.m. on Thursday and continue on Saturday, Sunday, Monday and Tues- day morning. Week 4 The claimant to have parenting time on Tuesday after school until 7:00 p.m. and Friday after school until Sunday at 5:00 p.m. The respondent to have parenting time on Monday, Tuesday after 7 p.m. Wednesday, Thursday and Friday until after school. 28 Dr. McCreight also recommended a division of holidays and summer vacations that respected each party’s religious beliefs and preferences for holiday time with C.H. 29 Lastly, Dr. McCreight indicated her opinion that the best interests of the child regarding a parenting plan would change over time as the child aged. In particular, Dr. McCreight wrote at page 17 of her report: Parenting plans change over time in relation to the child’s advancing developmental stages. Experts in parenting plans perceive age 7 as the age at which the child is able to spend more time away from a parent. At age 7, [C.H.] will likely begin to express his opinion regarding some of the parenting plan schedules and it is hoped this will be reflected in future plans. 30 On September 2, 2015, Dr. McCreight issued a revised s. 211 report which altered the parenting schedule to reflect a three-week rotation and less parenting time with the claimant: Week 1 The claimant has parenting contact from Friday after school until Sunday at 7:00 p.m. and the respondent has C.H. for the rest of the week. Week 2 Repeat week 1. H. (P.A.) v. H. (K.M.) Bruce J. 97

Week 3 The claimant has parenting time with C.H. on Thursday after school until 7:00 p.m. and C.H. resides with the respondent the rest of the week. 31 In addition, Dr. McCreight recommended that each parent may attend public events in which C.H. participates, such as school events, sports and extracurricular activities. She cautioned that the parents should be civil and cooperative during these events. 32 When the first s. 211 report was issued on July 22, 2015, the claimant reacted very badly. He believed that C.H. should have an equal shared parenting regime and he continued to press the respondent to agree to his demands. The claimant’s text messages to the respondent became more abusive and aggressive and she responded with anger and frustration. Soon after the report was issued, the claimant contacted the police and the Ministry of Children and Family Development to complain that C.H. had been threatened with a belt as a means of punishment by Mr. W. Although the respondent assured him that Mr. W. had not used or threatened any form of physical punishment, the claimant pressed on with his complaint. The Ministry did not investigate the complaint beyond initiating telephone contact with the respondent. 33 Since July 2015, the claimant has continued to be uncooperative with regard to parenting time with C.H. He also continued to treat the respondent and Mr. W. with disrespect and he shared his negative views about them with C.H. Indeed, the claimant instilled in C.H. the notion that he “lives” with his father in their home but only has “sleep overs” at his mother’s home. Transfers on Friday evenings remained problematic because of the acrimonious relationship between the parties. Cooperative parenting continues to be very difficult, primarily because the claimant does not respect the problems that the respondent perceives in C.H.’s behaviour. He expressed the view that C.H.’s behaviour with him is acceptable and that the respondent’s assessment is incorrect. 34 Since the fall of 2015, C.H. has attended Bowser Elementary school. The claimant has actively participated in school events with C.H. and has established a relationship with his teacher, the counsellor and the school principal. The sole issue is the distance he must drive from Courtenay to pick up and drop off C.H. on school days. 35 On the other hand, the co-parenting difficulties have grown since C.H. has started school. He is exhibiting behaviour problems in school. His teacher maintains that C.H. is disrespectful to her and is resistant to 98 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

proper discipline in the classroom. Although the claimant testified that he is working with C.H.’s teacher to address problematic behaviour, he continues to downplay the child’s disrespectful attitude towards his teacher, the respondent and Mr. W. 36 In September 2015 just prior to the commencement of school, the parties were scheduled to attend a “meet and greet” for C.H.’s kindergarten class. The respondent arranged to have the morning off work to attend the event. The claimant had taken C.H. camping but was aware of the event and planned to attend with him. The respondent sent the claimant text messages to remind him of the event and the 11:00 a.m. start time. She also telephoned the claimant when there was no response. The respondent telephoned the claimant’s mother and asked her to pass on the message to the claimant. The respondent attended the school and waited for the claimant to arrive. He failed to return any of her calls. The respondent had to leave the event for work at 1:00 p.m. and was very upset because C.H. had missed this opportunity to meet his teacher and his classmates. The claimant attended the event in the afternoon and claimed to have seen a notice with an incorrect time. This incident led to an unfortunate scene at the transfer location later that day because the respondent was clearly upset that C.H. had missed the event. Had the claimant been even moderately cooperative and returned the respondent’s telephone calls, the entire dispute could have been avoided. 37 The claimant also continued to be uncooperative with regard to the parenting schedule and would not agree to the respondent’s reasonable requests for adjustments. For example, the respondent planned a vacation in January 2016 that included travel outside Canada. The respondent provided the claimant with advance notice of the trip and an itinerary. The claimant refused to sign a consent letter authorizing the travel because the child would be away nine days and he interpreted the order of Flem- ing J. as mandating only two week-long vacations with C.H. The respondent agreed to make up any lost parenting time, but the claimant continued to deny his consent. At the hearing, I questioned the claimant in regard to his objections to the trip and he conceded that he had none. During the hearing he agreed to execute the consent letter voluntarily. 38 The claimant is also not willing to take C.H. to sports during his parenting time unless he has arranged for the activity. The respondent cannot register C.H. in any team sport or extracurricular activity that falls on a weekend because the claimant will not take him to these activities. H. (P.A.) v. H. (K.M.) Bruce J. 99

39 The claimant chooses to communicate with the respondent by text message; he will not call her to make arrangements for the child. His text messages are not confined to matters relating to C.H. and appear to be excessive in number. They are also abusive and rude.

Argument 40 The claimant argues that an equal parenting regime is in the best interests of the child at this time, despite Dr. McCreight’s opinion. She testified that had the respondent not moved to Bowser, her opinion may have been different. Thus the claimant argues that his parenting time with the child should not be dictated by the respondent’s decision to relocate in contravention of the Court’s order. The claimant also argues that there should be a change in schools in the fall of 2016 to reflect the fact that he and the respondent work in Courtenay and he resides in Courtenay. 41 The respondent argues that a parenting regime that restricts the number of transfers and one that permits her to have weekend time with C.H. is in his best interests. She argues that C.H. needs stability in his life at the present time because kindergarten is a huge adjustment for him and he is not weathering the change well. Further, the respondent argues that Bowser Elementary school is the best choice for C.H. If he moves to a school in Courtenay or to Royston (which is 44 kilometres from Bow- ser), C.H. will have to be placed in daycare each morning and after school. If he remains at Bowser Elementary, C.H. is able to go to school directly from home and does not require after school daycare.

Decision 42 It is only the best interests of the child that determines the appropriate parenting arrangements. Section 37 of the FLA articulates this principle and how the best interests of the child are to be determined: 37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only. (2) To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the following: (a) the child’s health and emotional well-being; (b) the child’s views, unless it would be inappropriate to consider them; 100 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

(c) the nature and strength of the relationships between the child and significant persons in the child’s life; (d) the history of the child’s care; (e) the child’s need for stability, given the child’s age and stage of development; (f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (g) the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member; (h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs; (i) the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (j) any civil or criminal proceeding relevant to the child’s safety, security or well-being. (3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being. (4) In making an order under this Part, a court may consider a person’s conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor. 43 Further, a parenting arrangement that accords equal time with the child to both parents is not presumed to be in the child’s best interests. This principle is found in s. 40(4) of the FLA: (4) In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed: (a) that parental responsibilities should be allocated equally among guardians; (b) that parenting time should be shared equally among guardians; H. (P.A.) v. H. (K.M.) Bruce J. 101

(c) that decisions among guardians should be made separately or together. 44 There are clearly ongoing and well entrenched problems between the parties that are adversely affecting the psychological wellbeing of C.H. The claimant’s inability to co-parent C.H. in a responsible and reasonable manner; his extreme lack of cooperation regarding parenting time with C.H.; his insistence upon sharing religious views with C.H. that adversely impact the child’s relationship with the respondent, Mr. W. and his teachers; and the claimant’s failure to suppress his bad feelings towards the respondent and her spouse create a very dysfunctional environment in which to raise a five-year-old child. 45 There is no doubt that the respondent’s decision to move to Bowser despite the order of Masuhara J. restricting her to the Comox Valley has exacerbated the acrimonious relationship between the parties. She has responded with anger and frustration at the claimant’s conduct and this has fueled their bad feelings for each other. Mr. W. has also directly criticized the claimant’s behaviour in an unproductive manner through his text messages. However, it is apparent that it is the claimant’s actions and demeanour that have led to great frustration and feelings of despair and helplessness for the respondent. It was the constant harassment by the claimant through his text messages and the respondent’s fear of the claimant’s undue interference in her life that led to her move to Bowser. 46 In light of the claimant’s conduct to date, it is necessary to define the parenting arrangement in a way that best insulates C.H. from the “fall- out” of the acrimony between the parties and otherwise serves his best interests as they are defined by s. 37 of the FLA. In my view, there must be changes made to the parenting arrangement in order to address the difficulties that C.H. is having at school; the co-parenting problems created by the claimant’s attitude and behaviour; the psychological harm caused to the child as a result of religious instruction that alienates C.H. from his mother; and the harmful impact of transfers between the parents. Further, the parenting arrangement must be specific and clear and must not permit deviations in order to normalize the relationship between the parties vis-`a-vis C.H. All of these factors were considered by Dr. Mc- Creight when she recommended more limited parenting time for the claimant. 47 Because of the claimant’s actions since the separation, it is in the best interests of the child to limit the claimant’s parenting time in order to promote the child’s wellbeing and emotional health. Further, limitations 102 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

on the claimant’s parenting time are necessary to restore a proper relationship between C.H. and his mother. 48 The following parenting arrangement is in the best interests of C.H. because it promotes all of the foregoing objectives: 1. The claimant shall have parenting time with C.H. every other weekend commencing Friday at 3:00 p.m. until Monday morning when the child is dropped off at school. Pick up and drop off shall be at the school only. If Friday or Monday is a statutory holiday or a professional day, pick up on Friday shall be at 3:00 p.m. at Union Bay and drop off on Monday shall be at Union Bay at 9:00 a.m. If C.H. is sick and cannot attend school on a Monday morning, he shall be dropped off at Union Bay at 9:00 a.m. 2. The respondent shall have parenting time with C.H. at all other times except for vacation and holidays as set out in paragraphs 3 and 4 below. 3. The claimant and the respondent are entitled to one week’s vacation in July and one week’s vacation in August with the child and these weeks are in addition to their regular parenting time. Fur- ther, the claimant and the respondent are each entitled to one week out of the two weeks the child has off school at Spring Break each year. In 2016, the claimant shall have the first week of Spring Break and the respondent shall have the second week and the parties’ weeks will alternate each year. The claimant shall advise the respondent by June 1 each year as to which weeks in July and August are his preferences for vacation time with C.H. If the parties cannot agree on vacation weeks, the claimant shall be accorded his first preference in 2016 and the respondent shall be granted her first preference in 2017 and this arrangement shall thereafter alternate each year. The parties shall also divide C.H.’s time off school for Christmas vacation equally in addition to their regular parenting time. The respondent shall have her first choice of time over Christmas 2016 and the next year the claimant shall have his first choice and thereafter this arrangement shall alternate each year. Where any of this vacation and holiday time conflicts with a parent’s regular parenting time, no make-up time will be arranged. 4. The claimant shall have parenting time in addition to his regular parenting time for the full day of The Memorial in April each year from 9:00 a.m. to 8:00 p.m. regardless of whether the day falls H. (P.A.) v. H. (K.M.) Bruce J. 103

during his regular overnight parenting time. This day will not be made up with additional parenting time with the respondent. 5. C.H. shall spend Mother’s Day with the respondent regardless of whether the day falls within the claimant’s regular parenting time and this time will not be made up with additional parenting time for the claimant. 49 The claimant shall not provide religious instruction to C.H., nor permit the child to attend religious services, until a review of the parenting regime is conducted as described below. I find that the claimant’s religious instructions to C.H. have alienated the child from his mother who is not a practising Jehovah’s Witness. The religious instruction given to the child by the claimant has caused him emotional distress and has likely caused behavioural problems at school. At the age of five years, the child is not old enough to maturely consider the religious instruction provided by his father. Further, in light of the acrimony between the parties, the child should not be instructed that his mother is less worthy of his respect due to her different religious beliefs and practises. 50 Further, neither party shall disparage the other or their respective spouses in the presence of the child. The child should not be subjected to or made party to any of the arguments between his parents. 51 The parties are free to attend public events in which C.H. is participating, such as sporting events and events at the school. However, the parties must not behave in a disrespectful manner towards each other or the other’s family members. 52 The claimant shall refrain from sending text messages to the respondent or to any member of the respondent’s family that are disrespectful of the respondent, her spouse or other family members. The respondent shall also be polite and respectful in her communications with the claimant. Communications must be limited to subjects related to the parenting of C.H. and must be limited to a maximum of one text message per day or one telephone call per day. 53 The claimant and the respondent shall be permitted one telephone call to the child each night that the other parent has parenting time with the child. The telephone call shall be between 7:00 p.m. and 7:30 p.m. and the parties shall exchange the telephone numbers designated for the contact. Neither party shall record or listen to the conversation with the child. Neither party shall do anything that interferes with the other party’s telephone contact with the child. C.H. must be permitted to talk to the parent for as long as he chooses between 7:00 p.m. and 7:30 p.m. 104 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

54 Because I have found that the respondent should remain the primary parent and, further, that the claimant’s parenting time should be limited in accordance with the above schedule, it is not in the best interests of the child to change his school from Bowser Elementary. It would also be contrary to the best interests of the child to alter his school and thereby necessitate daycare before and after school. Due to the respondent’s work schedule, the child would have to rise very early in the morning to travel to a school in Courtenay or Royston and would be required to spend the hours before school begins in a daycare facility. These circumstances would likely adversely affect C.H.’s ability to function at school due to fatigue. Moreover, the claimant’s sole difficulty with Bowser Ele- mentary school is the distance he must travel to pick up and drop off C.H. In my view, the additional 30-minute drive is not a substantial hardship for the claimant and is not detrimental to C.H. Accordingly, for these reasons I find that C.H. should remain enrolled at Bowser Elemen- tary school. 55 The claimant shall cooperate fully with the respondent in regard to all parenting issues regarding C.H., including his behaviour at school. 56 The claimant shall complete the Parenting After Separation course that is available in the Comox Valley area within 12 months of this order. 57 The parenting arrangement shall be subject to a review on or after October 5, 2017, when C.H. is seven years old. The review shall also address the child’s religious instruction. This review is consistent with Dr. McCreight’s opinion that by this time C.H.’s development will likely have advanced to the point where the parenting regime should be re-eval- uated. Further, I find that this length of time is necessary to undo the harm caused to the child and his relationship with the respondent, which was caused by the claimant’s behaviour after their separation. The claimant must change his attitude and his behaviour towards the respondent to prove that he is capable of co-parenting C.H. in a mature and responsible manner. All of these factors will be considered by the court during a review of the parenting arrangement. 58 I will remain seized of any dispute that arises from this judgment until September 2016. 59 In light of the respondent’s substantial success in this matter, I award her costs at Scale B. Application granted in part. Rea v. Rea 105

[Indexed as: Rea v. Rea] Tracey Bernadette Rea, Applicant and Natale Rea, Defendant Ontario Superior Court of Justice Docket: Newmarket FC-15-049190-00 2016 ONSC 382 P.A. Douglas J. Heard: January 12, 2016 Judgment: January 14, 2016* Family law –––– Costs — In family law proceedings generally — Interim costs or disbursements –––– Wife claimed that husband had large number of assets available to him and historically earned substantial income — Wife claimed that husband’s obstructive conduct had dramatically driven up costs — Wife claimed that issues were complex and required extensive expert analysis — Wife brought motion for interim disbursements — Motion granted — Proceedings and issues raised were both legally and factually complex — Given husband’s extensive corporate holdings, expert analysis would be necessary and would be time-consuming — Wife had not worked outside home since birth of parties’ first child 23 years ago and she had no assets — Husband had been sole and substantial provider for family — Playing field was not level — Husband had already paid interim disbursements of $100,000 to wife and funds were exhausted almost immediately — Without advance of some interim disbursements, wife would not be able to fund her ongoing participation in litigation — At early stage all claims were prima facie meritorious — It was necessary to ensure that playing field was sufficiently level so that fairness was achieved in relation to parties’ relative access to justice — Wife was awarded interim disbursements of $250,000. Cases considered by P.A. Douglas J.: Bagheri-Sadr v. Yaghoub-Azari (2011), 2011 ONSC 611, 2011 CarswellOnt 780 (Ont. S.C.J.) — referred to Belittchenko v. Belittchenko (2006), 2006 CarswellOnt 6015, 33 R.F.L. (6th) 336, [2006] O.J. No. 5493 (Ont. S.C.J.) — referred to British Columbia (Minister of Forests) v. Okanagan Indian Band (2003), 2003 SCC 71, 2003 CarswellBC 3040, 2003 CarswellBC 3041, 313 N.R. 84, [2004] 2 W.W.R. 252, 21 B.C.L.R. (4th) 209, 233 D.L.R. (4th) 577, [2004] 1

* Additional reasons at Rea v. Rea (2016), 2016 CarswellOnt 4356, 2016 ONSC 2027 (Ont. S.C.J.), respecting costs. 106 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

C.N.L.R. 7, 189 B.C.A.C. 161, 309 W.A.C. 161, 43 C.P.C. (5th) 1, [2003] 3 S.C.R. 371, 114 C.R.R. (2d) 108, [2003] S.C.J. No. 76, 2003 CSC 71 (S.C.C.) — followed Hughes v. Hughes (2009), 2009 ABQB 154, 2009 CarswellAlta 337, 68 R.F.L. (6th) 119 (Alta. Q.B.) — referred to L. (J.K.) v. S. (N.C.) (2009), 2009 CarswellOnt 1017, 64 R.F.L. (6th) 32, [2009] O.J. No. 804 (Ont. S.C.J.) — referred to Lakhoo v. Lakhoo (2015), 2015 ABQB 357, 2015 CarswellAlta 1022, 62 R.F.L. (7th) 24 (Alta. Q.B.) — referred to Levina v. Levine (2014), 2014 ONSC 2774, 2014 CarswellOnt 6104, [2014] O.J. No. 2238 (Ont. Div. Ct.) — referred to Rosenberg v. Rosenberg (2003), 2003 CarswellOnt 2060, 39 R.F.L. (5th) 403, [2003] O.J. No. 2193, [2003] O.T.C. 492 (Ont. S.C.J.) — considered Stuart v. Stuart (2001), 2001 CarswellOnt 4586, [2001] O.J. No. 5172, 24 R.F.L. (5th) 188, [2001] O.T.C. 965 (Ont. S.C.J.) — followed Rules considered: Family Law Rules, O. Reg. 114/99 Generally — referred to R. 24(12) — considered Forms considered: Family Law Rules, O. Reg. 114/99 Form 35.1 [en. O. Reg. 6/10] — referred to

MOTION by wife for interim disbursements.

L.H. Pawlitza, C. Ashbourne, for Applicant H. Niman, E. MacKenzie, for Respondent

P.A. Douglas J.:

1 The Applicant’s motion originally returnable December 29, 2015 came before me by way of argument of some of the issues on January 12, 2016. 2 The issues identified to me at the outset of the motion are as follows: (a) Whether there should be an order for interim disbursements in the Applicant’s favour in the amount of at least $1,000,000; (b) Whether there should be an order for a psycho-educational assessment for the child of the marriage Joshua; (c) Whether there should be an order that there be counselling for the child of the marriage James; Rea v. Rea P.A. Douglas J. 107

(d) Whether there should be an order requiring the Respondent to provide the Applicant with the access code to the gate that leads to the office property located at 2000 16th Side Road King City, On- tario; and, (e) Whether there should be an order for financial disclosure from the Respondent as set out in Schedule A to the Notice of Motion. 3 The Respondent’s position is that the motion for interim disbursements should be adjourned pending completion of questioning subject to the payments pursuant to the October 22, 2015 order continuing. 4 The Respondent proposed wording for orders with respect the psycho-educational assessment and the counselling to which the Appli- cant did not object in reply and accordingly, with some minor modifica- tion by me, there will be orders as follows: (a) A psycho-educational assessment for the parties’ son Joshua Rea may be conducted by an assessor recommended by the Country Day School and agreed to by the parties. The parties shall share the costs of this assessment proportionately according to their incomes, once determined. The initial costs of this assessment shall be paid by the Respondent. (b) Counselling for the parties’ son James Rea may be conducted by a therapist recommended by the Country Day School and agreed to by the parties. The parties shall share in the cost of up to one session per week proportionately according to their incomes, once determined. The initial cost of this counseling, for up to a maximum of one session per week, shall be paid by the Respondent. 5 Additionally, there is an issue with respect to the Respondent’s leave to file his pleadings, including his financial statement, without including his 2014 Notice of Assessment which is not yet available. The Applicant did not oppose to this request. Accordingly, there shall be a further order as follows: (c) The Respondent may file his Answer, Financial Statement, Certif- icate of Financial Disclosure and Form 35.1, without including his 2014 Notice of Assessment subject to filing same forthwith upon receipt. 6 In his submissions counsel for the Respondent did not oppose the relief sought with respect to the access code for the gate leading to the office property; accordingly there shall be a further order as follows: 108 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

(d) The Respondent shall forthwith provide to the Applicant the access code to the gate that leads up to the office property located at 2000 16th Side Road, King City, Ontario. The access code shall not be changed without prior notice to the Applicant. The Respon- dent shall ensure that the Applicant is provided the current access code at all times. 7 Although the Applicant, through counsel, identified disclosure as a live issue on the motion, I received no specific submissions regarding outstanding disclosure. The Applicant’s counsel did concede that there has been recent cooperation with respect to disclosure. I am unclear as to whether the Applicant is still pursuing relief in this regard. If relief is still being pursued in this regard, counsel may address same in brief written submissions to be supplied at the same time as cost submissions. 8 The primary issue argued on the motion was that of interim disbursements. 9 The Applicant’s position may be summarized as follows: (a) The Respondent has an enormous array of assets available to him and has historically earned substantial incomes. His financial position is dramatically stronger than that of the Applicant, resulting in an uneven playing field; (b) The Respondent’s obstructive conduct has driven up costs dramatically, thus eroding the minimal resources available to the Applicant; (c) The legal and factual issues are complex and will require extensive expert analysis before a resolution is possible. 10 The Respondent’s position is as follows: (a) The Respondent has been eroding his capital since 2012. He should not be required to erode capital in order to satisfy an award of interim disbursements; (b) The Respondent has no present source of income; (c) The Respondent’s liquid assets are limited to approximately $780,000 at the time of the motion. He is eroding his liquid assets to comply with the order of Rogers, J. dated October 22, 2015; (d) The Respondent has already paid $100,000 to the Applicant pursuant to the consent order of (date to be inserted). This is more than sufficient for the Applicant’s immediate needs regarding disbursements; Rea v. Rea P.A. Douglas J. 109

(e) The evidence in support of the motion for interim disbursements lacks the necessary detail and specificity to justify the relief sought.

Analysis 11 Rule 24(12) of the Family Law Rules provides as follows: The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees. 12 In British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 (S.C.C.) the Supreme Court of Canada held that there are three requirements that must be present for a court to award interim disbursements: (a) The party seeking the order must be impecunious to the extent that, without such an order, that party would be deprived of the opportunity to proceed with the case; (b) The claimant must establish a prima facie case of sufficient merit to warrant pursuit; and (c) There must be special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate. 13 In deciding as it did in Okanagan, the Supreme Court of Canada acknowledged that these requirements can be modified by the legislature. In Ontario, Rule 24(12) of the Family Law Rules governs. 14 In Stuart v. Stuart, [2001] O.J. No. 5172 (Ont. S.C.J.) the court summarized general principles regarding interim disbursements in the family law context: (a) The ordering of interim disbursements is discretionary and the court should exercise its discretion to further the objective of fairness; (b) The party seeking the disbursements bears the burden of proof; (c) The party seeking the disbursements must demonstrate that absent the advance of funds for interim disbursements, the claimant cannot pursue their legal rights; (d) The claimant must show that the expenses are necessary and reasonable given the needs of the case and the funds available; 110 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

(e) The claimant must demonstrate that he or she is incapable of funding the requested amount; (f) The claim advanced must be meritorious as far as can be determined on a balance of probabilities at the time of the request for disbursements; (g) The exercise of discretion should be limited to exceptional cases; (h) Interim costs in matrimonial cases may be granted to level the playing field; (i) Monies might be advanced against an equalization payment, but the order for interim disbursements should not be limited to cases where it would be taken out of an equalization payment; (j) The court will consider the primary objectives of the Family Law Rules in making a determination on interim disbursements; and (k) An order under Rule 24(12) should not prevent a party from obtaining costs awards. (l) Procedural fairness also means that both parties should be equally wary about the potential of a costs order against them. (m) An order under Rule 24(12) should not immunize a party from cost awards. The order is to allow the case to proceed fairly and should not be such that a party feels a licence to litigate. 15 In Rosenberg v. Rosenberg, [2003] O.J. No. 2193 (Ont. S.C.J.) the Applicant sought an order for interim disbursements in the amount of $75,000 to fund a forensic accounting/valuation of the other party’s business assets for equalization purposes. It appears that the court had before it nothing more than an estimate of fees in the range of $75,000 to $110,000. At para. 19 the court concluded that the estimated fees were “insufficiently detailed and on their face excessive and unreasonable in regard to what appeared to be the issues in this case”. The court observed that “...when the estimated fees are at least $75,000 it is incumbent upon the authors of the estimate to provide detailed information as to why the matter merits such expense.” The court continued “courts must always be concerned about controlling the process, particularly in current times where costs of litigation including lawyers and experts have become prohibitive”. 16 Rosenberg was decided in 2003 and made reference to the absence of reported cases awarding interim disbursements in excess of $35,000. Since that time there have been several precedents fixing interim disbursements in larger amounts: Rea v. Rea P.A. Douglas J. 111

(a) Belittchenko v. Belittchenko, [2006] O.J. No. 5493 (Ont. S.C.J.), total interim disbursements of $217,616. (b) Lakhoo v. Lakhoo, 2015 ABQB 357 (Alta. Q.B.), interim disbursements of $400,000. (c) Bagheri-Sadr v. Yaghoub-Azari, 2011 ONSC 611 (Ont. S.C.J.), interim disbursements of $125,000. (d) L. (J.K.) v. S. (N.C.), [2009] O.J. No. 804 (Ont. S.C.J.), interim disbursements of $115,361. (e) Hughes v. Hughes, 2009 ABQB 154 (Alta. Q.B.), interim disbursements of $500,000. (f) Levina v. Levine, [2014] O.J. No. 2238 (Ont. Div. Ct.), interim disbursements of $100,000 upheld by Divisional Court. 17 In her submissions counsel for the Applicant scaled back the request for interim disbursements to $400,000. She referred to the estimate of Vivian Alterman of AP Valuations that the fees in connection with this matter will not be less than $250,000 plus applicable taxes. In this regard Ms. Alterman has provided a letter dated December 1, 2015, referred to in her affidavit sworn January 5, 2016, and in that letter she states: “It is difficult to estimate our fees due to the complexities associated with this matter”. She goes on to describe some of those complexities before indicating: Based on the above, we estimate our fees in connection with this matter will not be less than $250,000 plus applicable taxes. Our fees will be based on actual hours incurred at our normal charge out rates (which currently range from $250 per hour to $450 per hour) plus applicable taxes. This estimate is neither a floor nor a ceiling and we note that the actual time incurred will depend on, amongst other things, the quantity and quality of the documents provided, the cooperation of Mr. Rea and his advisors and the number of issues to pursue, which will only become evident once we commence our analysis. 18 The parties are both of the view that this proceeding and the issues raised will be complex, both legally and factually. In the context of this case it should not be surprising that an estimate of the magnitude advanced by Ms. Alterman is advanced. Given the Respondent’s extensive corporate holdings and the other factors outlined in Ms. Alterman’s letter, this matter is clearly complicated and an expert’s analysis will necessarily be involved and time- consuming. 112 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

19 In my view, the level of specificity and detail contained in Ms. Al- terman’s estimate is as good as possible at this very early stage in the proceedings; however, that does not mean to say that it is reasonable or necessary for the full amount of this anticipated expense to be advanced up front. 20 In terms of the Applicant’s resources, I note she has not worked outside the home since the birth of the parties’ first child twenty-three years ago. She owns no assets. The Respondent has been a sole and substantial provider for the family virtually from the outset of their relationship. It is clear that the Applicant does not have anywhere near the same resources available to her as does the Respondent. The playing field is clearly not level. 21 Recently the Respondent paid interim disbursements to the Applicant in the amount of $100,000. Those funds were exhausted almost immediately with only $2000 remaining. $75,000 of that $100,000 was paid out to her lawyers and evaluators. She repaid part of a loan and a line of credit incurred following separation. She spent about $3000 of the funds on Christmas presents for the family. 22 Pursuant to the order of October 22, 2015 the Respondent is maintaining payments with respect to the house and these payments are not insignificant, nor is the benefit to the Applicant. However, these payments provide shelter and other necessities for the Respondent and the children, not an ability to compete with the Respondent’s resources to fund her participation in this litigation. 23 As a consequence I am satisfied that absent the advance of some funds for interim disbursements, beyond those already provided, the Ap- plicant would not be able to pursue her legal rights. 24 At this early stage in the proceeding there is no reason to conclude that the claims advanced by either party are without merit. All claims advanced by the parties are, prima facie, meritorious at this early stage of these proceedings. I am also satisfied based on the financial statements supplied and the other affidavit evidence with respect to the parties’ means that the Applicant is incapable of funding her ongoing participation in this litigation from her own resources. 25 Although I do not believe it is strictly required by the case law in a matrimonial context, I view this set of circumstances to be exceptional given the wide disparity in available resources as between the parties. Rea v. Rea P.A. Douglas J. 113

26 The Applicant also seeks interim disbursements in respect of anticipated legal fees. In her affidavit sworn December 3, 2015 at paras. 60 and 61 she deposes as follows: 60. I am advised by my lawyer that she has attempted to estimate an amount for legal fees that might be incurred. Given the complete lack of cooperation to date, the anticipated claims, the apparent desire to appeal interlocutory matters, and the steadfast refusal to respond or reasonably resolve even the simplest of issues (such as consenting to psycho-educational assessment for Joshua and counselling for James), she expects that I will incur a minimum of approximately $750,000 within the next year or so ($650,000 plus $84,500 HST) and anticipates it likely to be much higher given Nat’s conduct, depending on the number of appeals, motions for leave to appeal and motions for disclosure that I will have to respond to or bring. While this number may seem high, in 2014, Nat, through Rea Holdings, spent nearly $900,000 in professional fees, most of which I believe were on legal fees. 61. The anticipated breakdown from my lawyer’s fee estimate is as follows: (a) Approximately 600 hours for Ms. Pawlitza, at $600/hour = $360,000; (b) Approximately 700 hours for her associate Christine Ashbourne, at $300/hour = $210,000; and (c) Approximately 300 hours for her law clerk Margaret Ventura (over 30 years experience), at $300 per hour = $90,000. 27 While this estimate includes some detail and specificity in terms of hourly rates and the estimates of time, those estimates of time are quite speculative, particularly at this extremely early stage in these proceedings. 28 The Applicant submits that the Respondent’s net worth exceeds $40,000,000, representing approximately half of the $80,000,000 he received in 2012 for his shares in Martinrea International Inc.. The Re- spondent disputes this calculation of net worth and submits that his net worth may be as low as “zero” after accounting for contingent liabilities exceeding $33,000,000. It is not necessary or possible for me to make a determination either way on the evidence currently available. 29 The Applicant notes that the Respondent’s gift of approximately $22,000,000 to the Natale Rea Family Trust in 2014 is suspicious due to its timing, scale and nature. The Respondent submits that he is not a ben- 114 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

eficiary of the trust. Again, it is neither necessary nor possible for me to come to a conclusion on this issue at this time. 30 The Applicant refers to the Respondent’s failure to comply with the Order of October 22, 2015 requiring him to pay $8,000,000 into court to the credit of this proceeding. There is no motion before me seeking relief in this regard. The Respondent submits he has made a proposal to bring him into compliance. I draw no conclusions on an issue not squarely before me on a complete evidentiary record. 31 The Respondent argues, quite correctly, that absent exceptional circumstances a party should not be required to erode capital in order to satisfy an award of interim disbursements; however, this is an exceptional case. I say that because of the wide disparity between the parties’ respective financial positions and because of the Respondent’s practice, established in 2012, of eroding capital to fund the parties’ lifestyle. Therefore erosion of his capital in the post-separation environment simply represents a continuation of a practice established by him long before the parties separated. 32 The Applicant is seeking $400,000 by way of interim disbursements. She has already received $100,000. 33 It may well be that the fees estimated by Ms. Alterman, and by counsel, in the aggregate range of $1,000,000, will prove to be reasonable, depending on how this proceeding unfolds; however, it is neither necessary nor possible to make an accurate prediction at this time. 34 What is necessary is to ensure that in the immediately foreseeable future the playing field is sufficiently level that the court can be assured that fairness has been achieved in relation to the parties’ relative access to justice. 35 For the reasons outlined above I conclude that this is an appropriate case to award interim disbursements to the Applicant, consistent with the principles summarized in Stuart. 36 Therefore there shall be additional orders as follows: (a) Within thirty days the Respondent shall pay to the Applicant’s counsel in trust the sum of $250,000 by way of interim disbursements; (b) The payment referred to in subparagraph (a) shall be credited to the Respondent in respect of any monies found owing by him to the Applicant as agreed by the parties or as ordered by the court; Rea v. Rea P.A. Douglas J. 115

(c) This order is without prejudice to the Applicant’s entitlement to seek further interim disbursements later in these proceedings. (d) If unable to agree on disclosure and costs parties to provide (to my assistant at Barrie) written submissions on these issues, limited to 3 pages excluding offers and Bills of Costs, within 30 days. Motion granted. 116 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

[Indexed as: Nova Scotia (Minister of Community Services) v. M. (J.)] Minister of Community Services, Applicant v. J.M., T.W., Respondents Nova Scotia Supreme Court Docket: 092032, 98803 2016 NSSC 22 Kenneth C. Haley J. Heard: January 4-8, 2016 Judgment: January 8, 2016 Family law –––– Children in need of protection — Practice and procedure in custody hearings — Commencement of proceedings — Parties — Miscel- laneous –––– Interim order was made placing child in temporary care of Min- ister of Community Services — Protection order was issued — Child had special needs and had many specialized services provided to him — Current foster parents were interested in adopting child — Minister decided to seek permanent care — Child’s aunt, who resided in British Columbia with 20-month-old daughter, expressed interest in adopting child — Aunt applied for standing pursuant to s. 36 of Children and Family Services Act — Application dismissed — Aunt had direct interest in proceeding and she had familial relationship with child — Aunt failed to prove, on balance of probabilities, that there was reasonable possibility, when compared to other alternatives, that child’s welfare might be enhanced by granting standing to her — Application was not timely and aunt had no contact with child for over 16 months — Child had special needs and aunt had not demonstrated any particular expertise to deal with needs — Aunt had troubled past and was young mother who was getting her life together — Child needed structure and stability and it was not in his best interests to disrupt progress he had made by making major change and it was not in his best interests to delay proceedings beyond statutory deadline — While aunt had good intentions, it was not in child’s best interest to blindly transition him to completely new environment in British Columbia given his unique challenges and his sensitivity to change — Standing alone, biological connection was not enough to grant standing — Aunt’s plan was not sensible, workable or well-conceived and it did not have basis in fact. Cases considered by Kenneth C. Haley J.: C. (R.) v. McDougall (2008), 2008 SCC 53, 2008 CarswellBC 2041, 2008 Car- swellBC 2042, 83 B.C.L.R. (4th) 1, [2008] 11 W.W.R. 414, 60 C.C.L.T. (3d) 1, 61 C.P.C. (6th) 1, (sub nom. H. (F.) v. McDougall) 297 D.L.R. (4th) N.S. (Min. of Community Services) v. M. (J.) Kenneth C. Haley J. 117

193, [2008] S.C.J. No. 54, 61 C.R. (6th) 1, (sub nom. F.H. v. McDougall) 380 N.R. 82, (sub nom. F.H. v. McDougall) 260 B.C.A.C. 74, (sub nom. F.H. v. McDougall) 439 W.A.C. 74, (sub nom. F.H. v. McDougall) [2008] 3 S.C.R. 41, [2008] A.C.S. No. 54 (S.C.C.) — followed Children’s Aid Society of Halifax v. B. (T.) (2001), 2001 NSCA 99, 2001 Car- swellNS 198, (sub nom. B. (T.) v. Children’s Aid Society of Halifax) 194 N.S.R. (2d) 149, (sub nom. B. (T.) v. Children’s Aid Society of Halifax) 606 A.P.R. 149, 19 R.F.L. (5th) 21, [2001] N.S.J. No. 225 (N.S. C.A.) — followed Nova Scotia (Minister of Community Services) v. C. (B.) (2012), 2012 NSSC 413, 2012 CarswellNS 997, 1029 A.P.R. 130, 324 N.S.R. (2d) 130 (N.S. S.C.) — followed Nova Scotia (Minister of Community Services) v. S. (M.) (2015), 2015 NSSC 307, 2015 CarswellNS 884 (N.S. S.C.) — considered Nova Scotia (Minister of Community Services) v. S. (S.) (2012), 2012 NSSC 293, 2012 CarswellNS 575, 1014 A.P.R. 135, 320 N.S.R. (2d) 135 (N.S. S.C.) — followed Statutes considered: Children and Family Services Act, S.N.S. 1990, c. 5 s. 36 — considered s. 39 — considered s. 42(3) — considered Maintenance and Custody Act, R.S.N.S. 1989, c. 160 Generally — referred to

APPLICATION by child’s aunt for standing in proceeding where Minister of Community Services was seeking permanent care of child.

Tara MacSween, for Applicant Alan Stanwick, for Respondent, J.M. Coline Morrow, for A.M. (party seeking standing)

Kenneth C. Haley J.:

1 This is the continuation of the matter of the Minister of Community Services, J.M. and T.W., file number 092032. Ms. MacSween represents the Minister, Mr. Stanwick representing the Respondent, J.M. and Ms. Morrow representing the Applicant for Standing, A.M. T.W. has not been participating and is again, not present here today and I see that J.M. is not present here today as well. MR. STANWICK: Yes, My Lord, J.M. did call me, probably around 9:00 o’clock this morning, regarding attending Court and for her 118 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

own personal reasons she decided she could not attend, but I did indicate to her that maybe she should, but I can understand, without going into great detail, her reasons behind not attending. So I just want to let the Court know that unlike the other day when nobody heard from J.M., she did contact me today and gave her own reasons why she wasn’t comfortable coming to Court here today. Thank You. THE COURT: Thank you Mr. Stanwick. 2 Well counsel, it has been a long week and before I go through my decision I want to thank you all for your presentation here this week in terms of your respective positions, particularly Ms. Morrow, I want to give you the Court’s thanks for getting involved at the eleventh hour. I know that wasn’t easy for you and you spent a week away from home and I can assure you whatever the result may be that you have certainly done a great service to your client, A.M., and you are to be commended for your conduct in the proceeding this week. Similarly Mr. Stanwick, this was also probably a difficult week for you as well in terms of trying to juggle your schedule and then without an appearance of your client, I want to give you again the Court’s personal thanks for making arrangements to be able to participate in this proceeding on such short notice. You are barrister of good standing in this community and I know you have a very busy workload and for you to have managed to take the time out of your busy schedule to accommodate this quick turnaround for this hearing is much appreciated by the Court. Similarly Ms. MacSween, I know this has been not an easy week for you in terms of trying to juggle all witnesses pending, the Standing Application has taken priority over the actual hearing, and here we are a week, or second week, trying to get the hearing started and we haven’t advanced much beyond that. But I want to thank you for all your efforts in trying to administer the attendance of witnesses throughout the course of the week. So, my thanks all the way around. 3 By way of background, this matter has been before the Court since July 16, 2014, at which time the Court issued an Interim Order pursuant to s. 39 of the Children and Family Services Act of Nova Scotia placing the child, M.W., in the temporary care of the Minister. A Protection Or- der was issued on October 10, 2014, with a series of review hearings following up to, and including, December 14, 2015. The Minister had made an early determination to seek permanent care at the hearing scheduled for December 14 through the 18th, 2015. At a Pre-trial Conference N.S. (Min. of Community Services) v. M. (J.) Kenneth C. Haley J. 119

on November 25, 2015, Mr. Stanwick, counsel for the Respondent, J.M., advised that his client was not putting forth a plan but was supporting her sister, A.M., who was seeking custody, but had yet to file anything with the Court at that time. 4 A.M. currently resides in British Columbia with her 20 month old daughter. A further Pre-trial was held on December 9, 2015, at which time the Minister advised they were not supportive of A.M.’s plan. The Respondent father, T.W., appeared, for the first time on that date, and indicated his opposition to the Minister’s application for permanent care. By December 9, 2015, A.M. had filed a Maintenance and Custody Appli- cation with the Court, seeking leave and custody with regard to the child, M.W. It was agreed that the Court would hear evidence regarding A.M.’s request for standing before dealing with the merits of the Minister’s application for permanent care. On December 14, 2015, A.M. appeared by telephone and persuaded the Court to permit her an opportunity to give evidence via video link. On December 15, 2015 A.M. advised the Court that she was successful in finding a place which could accommodate a video conference at the courthouse in Surrey, British Columbia. A.M. was instructed to file an affidavit in the matter and the matter. 5 Based upon the information provided by A.M. on December 15, 2015, the Court was prepared to commence the Standing Application via video conference on December 17, 2015. On December 17, 2015, A.M. failed to appear. When A.M. was contacted by phone subsequently, she submitted to the Court that she did not know that she had to appear because no one from the Sydney Courthouse had confirmed her attendance. The Court rejected and does reject this explanation as it was clearly stated on the record that A.M. was to make herself available for the video conference at the appointed time and place. In the circumstances, the Court nonetheless granted a further adjournment to January 4, 2016, to allow A.M. the opportunity to travel to Sydney and actually appear for the hearing in person and also importantly, to permit the Respondent father, T.W., more time to secure counsel. 6 On January 4, 2016, the Standing Application commenced. The Ap- plicant testified followed by the Minister’s witnesses who were Cst. Ryan Lawrence, Ms. Marilyn MacNeil, Temporary Care Worker, and Ms. Dawn Manley, Protection Worker. The Standing Hearing concluded on January 7, 2016 with submissions from counsel and the decision was reserved until today’s date namely, January 8, 2016. It should be noted that the Respondent father, T.W., failed to appear for the entirety of the 120 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

hearing this week and has not put forth a plan. As well, the Respondent mother, J.M. did not attend the hearing on January 6 and 8, 2016. 7 The statutory deadline in this matter was January 6, 2016, and on that date all parties consented with the concurrence of the Court that the deadline should be exceeded to conclude the Standing Application in the best interests of the child, M.W. I have scrutinized the evidence with care. I have carefully considered the evidence and the thorough submissions of counsel. My decision is as follows.

Decision: 8 This is a Standing Application pursuant to s. 36 of the Children and Family Services Act of Nova Scotia. Section 36 states as follows; The parties to a proceeding pursuant to s. 32 through 49 are, and specifically s. 36 (f) says: Any other person added as a party at any stage of the proceeding pursuant to the Family Court Rules. Family members may be granted standing in a proceeding if the order sought by a party to the proceeding make their intervention timely and relevant to the determinations in issue. The Court is guided by the decision of Children’s Aid Society of Halifax v. B. (T.), 2001 NSCA 99 (N.S. C.A.). Our Appeal Court states as follows, at paras. 52 through 55; [52] The agency has a statutory duty to take reasonable measures to provide services to families and children that promote the integrity of the family (s. 13 CFSA). The court has its own responsibility to take into account such measures and alternatives as are applicable in the circumstances of the case, before removing the child from the care of a parent or guardian (s. 42(2) CFSA). Thus the court and the agency share a responsibility to see that reasonable family or community options are considered. But the burden of establishing the merits of the alternative proposed are squarely upon the proponent. It is the proponent who must satisfy what I would term a burden of persuasion. Only when specific arrangements have been conceived and put in place by the proponent can the viability of that proposal be assessed. [53] Quite apart from the statutory component, there are sound practical and policy reasons for fixing the proponent of a family placement with the burden of persuasion that I have described. The things that motivate alternative proposals for family placement in child custody matters may be as varied as the factors which prompted the family crisis in the first place. In many cases, a relative’s offer to provide shelter, love and support to another parent’s child will be driven by a genuine affection and willingness to help. But in other cases, offers of assistance may be prompted by harsh, yet subtle catalysts, includ- N.S. (Min. of Community Services) v. M. (J.) Kenneth C. Haley J. 121

ing threats or other forms of coercion by those whose power or control over the proposed custodian may go well beyond the current judicial proceeding. This reality may be quite difficult to discern; all the more reason to expect that the individual who volunteers to serve as an alternative family placement, be obliged to demonstrate that the proposed plan is workable, well-motivated and worthy of serious consideration. [54] The agency is not required to investigate each and every family placement proposal. The burden of persuasion is upon those advocating a competing plan to advance the most compelling and sensible alternative they can muster. [55] There is an obligation upon the person advocating a competing plan to present some cogent evidence with respect to it. In that way, the merits and viability of the proposal will have some foundation in fact which might then be adequately assessed by the trial judge. Should time permit and circumstances warrant, it may well be that the plan put forward as a worthwhile family placement option will require further investigation, perhaps in some cases a complete home study report. However, not every possible placement alternative will require such a response. 9 When responding to a family placement request the Court must be responsive to the reasonable alternative. Pursuant to the B. (T.) case aforementioned, at para. 31, reasonable has been deemed to mean; [31] ...those proposals that are sound, sensible, workable, well-conceived and have a basis in fact. 10 In addressing the issue of standing I rely upon the decision of Nova Scotia (Minister of Community Services) v. S. (S.), 2012 NSSC 293 (N.S. S.C.), a decision of Jollimore, J.. In that decision, Justice Jollimore outlined the factors which the Court must consider when determining a Standing Application: (1) Whether the non-party seeking standing has a direct interest in the proceeding subject matter; (2) Whether the non-party seeking standing has a familial or some other relationship with the children; (3) Whether there is a reasonable possibility when compared to other alternatives that the children’s welfare may be enhanced by the 122 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

granting of the non-party standing in hearing the relevant evidence. 11 In Nova Scotia (Minister of Community Services) v. C. (B.), 2012 NSSC 413 (N.S. S.C.), Forgeron, J., adopted these three factors. She stated at paras. 21, 22 and 23 as follows: [21] The burden is on CD and GD to prove their case. I find that they have not done so. Although, I am satisfied that they have a direct interest in the proceedings and that there is a preexisting family relationship, CD and GD have not proven that their involvement has a reasonable possibility of enhancing the children’s welfare. [22] In reaching this conclusion, I have reviewed the best interests test as articulated in secs. 2(2) and 3(2) of the Children and Family Services Act. I have also considered the law as set out in Nova Scotia Minister of Community Services v. S.(S.), supra. I draw my conclusion from the following findings of fact: • The relationship between CD and GD and the children was markedly restricted during the past year and a half. Further, CD and GD have little connection to M, who was born on March *, 2011. • The relationship between the maternal grandparents and BC and IF is a divisive one. Animosity and conflict continually erupt when they interact. Indeed, CD and BC were involved in a physical altercation that resulted in police being called. This altercation began when the children were present. • The application was made before the Minister has suggested that the agency will seek a permanent care and custody order. At this stage, the Minister’s focus is on the provision of services which will eliminate the risks so that the children can be safely returned to BC and IF. [23] Given these findings, CD and GD will not be granted party status. 12 Justice Forgeron further found that the grandmother in this case had demonstrated inappropriate reactions to stress in the past by engaging in physical confrontations and driving dangerously. The grandfather watched pornography in the presence of others and refused to stop. The Applicants did not have the skills nor the experience to parent special needs children and there were serious safety concerns regarding the home including storage of guns and ammunition together in an unlocked locker. N.S. (Min. of Community Services) v. M. (J.) Kenneth C. Haley J. 123

13 At para. 32, Justice Forgeron states; [32] The children have significant needs. It is not in their best interests to be removed from their current foster homes to be placed in the care of CD and GD in light of these significant deficits. The plan of CD and GD is not sound, sensible, workable, well-conceived or appropriate. 14 It should be noted that in this instance the case was not at the permanent care stage. 15 Justice Forgeron wrote a second decision in Nova Scotia (Minister of Community Services) v. S. (M.), 2015 NSSC 307 (N.S. S.C.). This case did indeed involve an application for permanent care. The maternal grandmother, S.S., sought standing in the matter. At para. 11 Justice Forgeron stated; [11] The parties agree that the Court should determine the application of S.S. before hearing the permanent care and custody application. And that is what has occurred in this instance as well. 16 Justice Forgeron denied standing to the applicant. Justice Forgeron found that the grandmother had never met one of the three children. Her last personal contact with the other two children was more than two years previous and her contact before that was inconsistent and sporadic. The Applicant struggled with mental health and substance abuse issues throughout much of her life leading to a chaotic lifestyle that produced child protection risks and concerns. The Applicant had not undertaken services to deal with the protection issues. 17 Justice Forgeron concluded at para. 32; [32] The children’s welfare will not be enhanced by having contact with their grandmother. S.S.’s ability to care for the children is marred because of a myriad of unresolved mental health and social welfare challenges. S.S. did not provide a reasonable alternative plan. Her proposal is not sound; it is not sensible; it is not workable; it is not well conceived. The biological connection standing alone is not a strong basis upon which to grant party standing. The motion is denied. 18 Similarly, Justice Forgeron went on to deny the companion application for leave under the Maintenance and Custody Act. 19 A.M. is the biological aunt of M.W. She is 27 and resides in British Columbia with her 20 month old daughter. She testified that she made initial contact with the Minister on May 13, 2015, inquiring about the prospect of adopting M.W. Dawn Manley, worker for the Minister, pro- 124 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

vided A.M. with a phone number to contact Adoption Services. A.M. did not have a lawyer and relied upon her own resources to navigate her way through the child welfare and legal process. It would appear A.M. got overwhelmed and lost in the process or at a minimum, did not fully understand the process and her responsibilities to same. Although seeking assistance, she was not able to follow up in a timely manner. It was not until December 9, 2015, that contact was again made with the Minister’s office. This lapse of time is unfortunate as it propelled A.M. into the Court process at the eleventh hour with a permanent care hearing due to commence on December 14, 2015. The statutory deadlines were to expire on January 6, 2016. 20 Defence counsel, on behalf of A.M., submits that the Minister’s office could have been more helpful during the May 2015 contact. Defence counsel are suspicious of the Minister’s motives, especially in view of the decision to seek permanent care in March of 2015. With respect, I do not share that view. 21 A.M. is responsible to make her intentions known to the Minister. She sought information about adoption and received that information. There was no obligation upon the worker to investigate the matter further, without further action being taken by A.M. Just as she carries the burden of proof in this application, I find she should have been more diligent in her attempts to pursue a placement for M.W. As stated earlier in B. (T.). supra, the Agency is not required to investigate each and every family placement proposal. The burden of persuasion is upon those advocating a competing plan to advance the most compelling and sensible alternative they can muster. 22 Further in the B. (T.) case, the Court states at para. 31; [31] Justice Cromwell’s words should not be interpreted as imposing either upon the agency or the court a statutory burden to investigate and exhaust every conceivable alternative, however speculative or fanciful. He spoke of reasonable family or community options. Neither the agency nor the court is obliged to consider unreasonable alternatives. Their statutory obligation is nothing more than to assess the reasonableness of any family or community alternatives put forward seriously by their proponents. By reasonable I mean those proposals that are sound, sensible, workable, well-conceived and have a basis in fact. The onus of presenting such a reasonable alternative must surely be upon the person or party seeking to have it considered. It is hardly the responsibility of the agency or the court to propose the alterna- N.S. (Min. of Community Services) v. M. (J.) Kenneth C. Haley J. 125

tive, provide the resources for its implementation, or shepherd the idea through to completion. 23 The belated timing of A.M.’s application is thus problematic. She en- ters the scene on the eve of a statutory deadline lapsing. The question then becomes, is further delay of this proceeding in M.W.’s best interests? 24 The Court must always be cognizant of the potential and viability of the family placement as per s. 42(3), but as a deadline approaches, the Court has limited options. At para. 25 of the B. (T.) case it states as follows; [25] Thus it can be seen that the operative placement provision I have just cited, s. 42(1)(c) of the CFSA, allows a type of disposition order. But such an order is only available for so long as the court has the jurisdiction to grant it. The extent of the court’s jurisdiction is limited by s. 45(1) of the CFSA, which fixes the maximum time limit for such orders. As the proceeding nears a conclusion, the opportunity to grant disposition orders under s. 42(1)(c) diminishes until the maximum time limit is reached, at which point the court is left with only two choices: one or the other of the two terminal orders. That is to say, either a dismissal order pursuant to s. 42(1)(a) or an order for permanent care and custody pursuant to s. 42(1)(f). 25 At para. 27, our Court of Appeal said as follows; [27] One ought not lose sight of the relationship between s. 42(3) and 42(1)(c). Once the maximum time limit is reached, s. 42(3) can no longer be determinative, since temporary placement with a relative, neighbour or other extended family is no longer available. At the end of the time limits, once the agency establishes that the child remains in need of protective services, and subject to the court’s authority to extend time in the rare circumstances I have described in paragraph 56 infra., the determination for the court becomes one of what final or terminal order is in the child’s best interests. At that stage during such a proceeding, consideration of family relationships is required only because it is one of several factors which are to form part of the child’s best interests as defined by s. 3(2) of the Act, not because s. 42(3) continues to require such consideration. 26 M.W. has been in the care of the Minister essentially since birth and was not in a stable foster environment until January of 2015 to present, according to the worker for the Minister. The current foster parents are interested in adopting M.W. It is nonetheless acknowledged by the Min- ister that all applications to adopt are given equal consideration. 126 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

27 M.W. has special needs and currently has many specialized services such as occupational therapy, physiotherapy and speech therapy. He attends the IWK Developmental Clinic and receives psychological services. I may have missed some, but those identified are substantial in any event. All the services that M.W. is receiving are under the observation of a pediatrician. 28 According to the evidence, M.W. is progressing well and as stated by the temporary care worker, Marilyn MacNeil, “Generally he is the most stable he has been in his short little life. He is coming along.” 29 The evidence is that M.W. struggles with change and that it is a big deal for him if his schedule changes. As an example something as minimal as change to daylight saving time can be a stressful situation for M.W. 30 The Minister’s plan is one of permanent care and adoption. A.M. requests standing so that she can pursue custody of M.W. Her plan is to relocate M.W. with her to her home in British Columbia and live with her 20 month old daughter. A.M. testified that she lives in a two-story townhouse with its own yard, garden plot and a playground for the children. During her last visit with M.W. in September of 2014, she testified that M.W. was very happy and kept hugging her daughter. He also hugged A.M.’s legs. A.M. testified that she has no criminal record, although the evidence showed that she was awarded an absolute discharge for assaulting a peace officer in December of 2012. A.M. acknowledged that she had a troubled past while living in Cape Breton. She testified, “I was lost and confused”. Currently, A.M. does not use illicit drugs and testified that she may have an occasional glass of wine. She testified that, “It has been a long journey.” 31 A.M. testified she has a support network in British Columbia through her father and his girlfriend who A.M. treats more like a step-mother. A.M. has a boyfriend who she testified is supportive, but A.M. tries to avoid any contact with her daughter’s biological father. A.M.’s plan for M.W. is to enroll him in specialized daycare and have him assessed in a local health centre which she described as equivalent to the IWK. It must be noted that none of these planned services have been confirmed to date. 32 A.M. testified that she can receive government assistance in terms of providing services for M.W. She also has a social worker available for guidance and support. A.M. remains under psychiatric care and takes medication as prescribed. There is some confusion about her diagnosis, N.S. (Min. of Community Services) v. M. (J.) Kenneth C. Haley J. 127

but at a minimum, it appears A.M. suffers from anxiety and/or depression. She testified now she “feels fantastic” and was never really happy until she had her own daughter. She now has a family and a life of her own. A.M. testified, “I see purpose, I am focused, I see what I want and I intend to get it”. 33 A.M. testified that because of her difficult upbringing she would be able to bring a different dimension or assistance to M.W. She would love him and give him fulfillment and purpose. A.M. is aware of M.W.’s special needs and believes she is up to the task to care for him. 34 The Minister’s concerns are mainly historically based upon A.M.’s past mental issues, suicide idealization, impulsive behavior, aggression with the police, hospitalizations and failing to report an incident of domestic violence between M.W.’s parents when she was residing with them for a month back in 2012. The Minister submits these factors should rule out A.M. as a candidate to have custody of M.W. 35 The Minister acknowledges that they have little or no information regarding A.M.’s present life and circumstance. The Minister acknowledges its concerns about A.M. are primarily historical, but emphasize the lack of meaningful contact that A.M. has had with M.W. since the Fall of 2014. The Minister also questions whether she is up to the task of caring for a child with special needs. 36 Regarding the three factors this Court must consider regarding standing, I find that A.M. has a direct interest in the proceeding. I also find it is clear that she has a familiar relationship with the child and in any event, these two factors are conceded by the Minister. The issue primarily for the Court to consider is whether or not there is a reasonable possibility when compared to other alternatives, that M.W.’s welfare may be enhanced by the granting of standing to A.M. and hearing the relevant evidence. There is no question that A.M. is well intentioned and motivated in making her application. I applaud her for stepping up and trying to make a difference in M.W.’s life. 37 When one reviews the circumstances of the applicants in S. (M.) & C. (B.). supra, there is no comparison to A.M. in terms of the genuineness of her application. Simply put, she is a young mother on the road to getting her life back together and on track. What she has achieved in the last three years is remarkable. She should be proud of her accomplishments. That said, I must deny A.M.’s application. She has not discharged the burden of proof upon her on the balance of probabilities as defined by 128 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

the Supreme Court of Canada in C. (R.) v. McDougall, 2008 SCC 53 (S.C.C.). At para. 46 the Court stated; [46] If a responsible judge finds for the Plaintiff, it must be accepted that the evidence was sufficiently clear, convincing and cogent to that judge and that the Plaintiff satisfied the balance of probabilities test. And at paragraph 49; [49] In the result, I would reaffirm that in civil cases there is only one standard of proof and that is proof on the balance of probabilities. 38 The McDougall decision supra, is binding upon this Court. Upon reflection and review of the law in this regard, I am satisfied it would be an error to assign a lesser threshold or standard of proof to A.M. in terms of determining her Standing Application. There is only one standard of proof and that is on a balance of probabilities. I therefore retract any comments to the contrary I may have made during the course of these proceedings. 39 A.M. has thus failed to prove, on the balance of probabilities, that there is a reasonable possibility, when compared to other alternatives, that M.W.’s welfare may be enhanced by the granting of standing to her. A.M.’s application was not timely. She had no contact with M.W. since September of 2014. M.W. has special needs and A.M. has not demonstrated any particular expertise to deal with such needs. M.W. needs structure and stability and it is not in his best interests to disrupt the progress he has made to date by injecting potential major change. It is also not in M.W.’s best interests to delay these proceedings beyond the statutory deadline. There are too many unknown factors to support A.M.’s plan. Her plan is well-intentioned but speculative and uncertain. There- fore it must be rejected. 40 A.M’s intentions are laudable but not supportable. It would not be in M.W.’s best interests to blindly transition him to a completely new and different environment in British Columbia given his unique challenges and sensitivity to change. It has been sixteen months since A.M. has personally interacted with M.W. This length of time, although understanda- ble given A.M.’s circumstances, is not acceptable in M.W.’s best interests. 41 I agree with Justice Forgeron that a biological connection, standing alone, is not a strong basis upon which to grant a party standing. I conclude that A.M.’ plan is not sound, sensible, workable, well-conceived, nor does it have a basis in fact. Her application is dismissed. For the N.S. (Min. of Community Services) v. M. (J.) Kenneth C. Haley J. 129

reasons above stated, I will also deny leave pursuant to A.M.’s application under the Maintenance and Custody Act. 42 Order accordingly. Application dismissed. 130 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

[Indexed as: Foster v. Jaques] Mark James Foster, Petitioner and Brandy Misty Anne Jaques, Respondent Manitoba Court of Queen’s Bench Docket: Winnipeg Centre FD 15-01-10226 2016 MBQB 6 Rivoalen A.C.J.Q.B. Judgment: January 5, 2016 Family law –––– Custody and access — Terms of custody order — Mobil- ity –––– Father was employed as oilrig supervisor and his work was performed overseas — Father was away for five weeks when he worked and was then home for five weeks — Mother had parenting issues and final order granted father sole custody of two children — Children were cared for by father’s parents, who lived in Saskatchewan, when he was working but they were no longer able to leave Saskatchewan to come to Manitoba every five weeks for five weeks because they were looking after elderly family member who had been diagnosed with cancer — Father made difficult decision to move with children to Saskatch- ewan so parents could continue to care for them when he was at work — Mother had brought motion to vary final order — Mother brought motion to have children returned to Manitoba from Saskatchewan — Motion dismissed — Father acted responsibly and it was in best interests of children to move them to Sas- katchewan so he could keep remunerative employment and provide children with day-to-day care they needed when he was away — Closing of protection file by Child and Family Services concerning mother and staying of criminal charge of abandoning child made against mother did not eradicate concerns that arose as result of incidents that gave rise to opening of protection file or laying of criminal charge in first place — Mother had poor parenting track record and she had not provided realistic scenario if children were returned to Manitoba pending trial — Current arrangement was working for children and was providing them with needed stability and it should not be disrupted — Mother had only limited contact with children for past year, which had been supervised — Mother just started working and living arrangements were in state of flux — It was not in children’s best interests to return them to Manitoba when mother’s parenting ability was still in issue. Cases considered by Rivoalen A.C.J.Q.B.: Gamble v. Dyck-Gamble (2000), 2000 CarswellMan 134, 145 Man. R. (2d) 145, 218 W.A.C. 145, 5 R.F.L. (5th) 323, [2000] M.J. No. 140 (Man. C.A.) — considered Foster v. Jaques Rivoalen A.C.J.Q.B. 131

Gordon v. Goertz (1996), [1996] 5 W.W.R. 457, 19 R.F.L. (4th) 177, 196 N.R. 321, 134 D.L.R. (4th) 321, 141 Sask. R. 241, 114 W.A.C. 241, [1996] 2 S.C.R. 27, (sub nom. Goertz c. Gordon) [1996] R.D.F. 209, 1996 Carswell- Sask 199, [1996] S.C.J. No. 52, 1996 CarswellSask 199F (S.C.C.) — followed Zacharias v. Zacharias (2012), 2012 MBQB 199, 2012 CarswellMan 394, 281 Man. R. (2d) 103 (Man. Q.B.) — followed Statutes considered: Family Maintenance Act, R.S.M. 1987, c. F20 s. 2(1) — considered

MOTION by mother to have children returned to Manitoba from Saskatchewan.

John D. Ramsay, for Petitioner Anand V. Persad, for Respondent

Rivoalen A.C.J.Q.B.: I. Introduction 1 This decision concerns a mother’s request to have her two children returned to Manitoba from Saskatchewan. They were taken there some weeks ago by their father. 2 In August 2015, this court pronounced a Final Order granting sole custody of the children to the father. 3 At the time the Final Order was granted, counsel for the mother consented to its pronouncement. 4 The Final Order provided for the mother to have access to the children as the parties could agree. 5 The parties have a trial scheduled, at which the primary focus will be the mother’s request to review the parties’ parenting arrangements. It will be heard in December 2016. 6 By virtue of the Final Order, the father was entitled to make all decisions about the children without consulting the mother and did so when he moved with the children to Saskatchewan. 7 For the reasons that follow, I am declining to order that the children be returned to Manitoba. 132 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

II. The Facts 8 The mother filed her Notice of Motion to Vary on November 26, 2015, asking the court, among other things, to grant her a shared parenting arrangement with the father and, on an urgent basis, to compel the father to return the children to Manitoba. Thereafter the parties attended a case conference, and their trial was scheduled. The issue of whether the mother should be granted an order forcing the father to return the children from Saskatchewan was hived out, to be dealt with on an emergency basis, and that is the subject of these reasons. The other relief sought by the mother will be dealt with at the trial in December 2016. 9 The evidence before me consisted of two affidavits from the mother, sworn on November 25, 2015, and December 15, 2015, and the father’s affidavit sworn December 8, 2015. There were no cross-examinations. 10 Certain aspects of the evidence must be highlighted in order to put the parties’ singular history into context.

A. The Father’s Evidence 11 The children are boys, now three and seven years old. 12 For some years the father has been employed as an oilrig supervisor. His work is performed overseas. Typically his cycle is five weeks away, which is when he works, and then five weeks at home, when he does not work. 13 The father deposed that even before the parties separated, and for some time before that, the mother was remiss as a parent. Virtually all responsibilities for the children’s care fell upon him during the five-week stretches when he was at home. He described a pattern of irresponsible behavior on the mother’s part. While he was home for five weeks, the mother would invariably leave to party, disappearing for days on end, abandoning all childcare duties. 14 According to the father’s evidence, the mother did not perform much better as a parent when he was away every five weeks. Indeed, an incident that occurred on or about December 2, 2014, while the father was away working, precipitated the parties’ separation. 15 The father deposed that the mother has long-standing problems with drugs and alcohol, which he says she regularly uses and abuses. He also described volatile, unstable, reckless and violent behavior on her part. The incidents described by the father, the full details of which I need not set out in these reasons, go back to the time when the parties were first Foster v. Jaques Rivoalen A.C.J.Q.B. 133

together, some seven years ago, and are quite concerning. They accord with the father’s description of the mother’s behavior and warrant a brief overview. Common themes run through a sampling of the incidents. 16 One incident involved the mother in a fit of rage, acting self-destruc- tively and smashing property in the parties’ home. It was followed by another incident a few days later in which she once again unleashed her fury, this time not only smashing property but also hitting the father in the face with a coffee mug, all in the presence of the children. In the aftermath of this event, the mother was charged with assault with a weapon. 17 Another incident involved the mother threatening to harm the older child. 18 Another incident involved the mother leaving the children unattended in a car while she drank at an establishment alongside a highway. 19 The incidents described above brought the mother to the attention of the R.C.M.P and, quite separately, to an agency of Child and Family Ser- vices, which both reportedly cautioned the mother about her behavior vis-a-vis the children. 20 On December 2, 2014, in yet another incident quite separate from those referred to above, the mother was arrested. She was charged with abandoning her younger child, which abandonment was likely to endan- ger his life, and which put him in need of protection. This episode was the final straw for the father when he learned of it. 21 The father returned home from his overseas work on December 3, 2014. That is when the parties ceased cohabiting. 22 The children have been in the exclusive care of the father since De- cember 3, 2014, with support from his parents as described below. 23 The father deposed that after he returned home following the mother’s arrest in December 2014, a second agency of Child and Family Services (“the Agency”) opened a file with respect to the mother and began an investigation. The father further deposed that the Agency social worker with conduct of the mother’s file instructed him to obtain custody of the children. That social worker also cautioned the father to not allow the mother unsupervised access to the children. 24 As part of the Recognizance into which the mother entered in connection with her most recent criminal charges, she was not allowed, by her own description of things, at first to have any contact with the father. Additionally, she was not allowed to be outside her place of residence 134 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

with the children without another adult present, once again by her own description of things, but she does not make it clear by what order or authority she was forbidden from having unsupervised contact with the children when outside her home. 25 In response to the situation in which the father found himself upon separating from the mother, his parents started to live for weeks at a time in his home in Manitoba. To do that, they had to travel from Saskatche- wan, which is where they reside. 26 Since December 2014, the father’s parents have assisted in the care of the children, particularly when the father has to go overseas to work every five weeks. For many months the father’s parents uprooted themselves from Saskatchewan to live with the children in the father’s home in rural Manitoba every five weeks and then returned to their own home in Saskatchewan to begin that pattern anew. Throughout these periods of time the mother had very limited, infrequent, supervised access to the children. 27 In November 2015, the father’s parents became unable to remove themselves from Saskatchewan every five weeks for five weeks. They began looking after an elderly family member who had been diagnosed with cancer. Consequently, in late November 2015, the father made the difficult decision to move to his former hometown in Saskatchewan, where his parents could continue to care for the children during his weeks of work overseas. He rented out his home in Manitoba and is rent- ing a home near his parents and his brother’s family. The home is located a block-and-a-half from an elementary school in which he has enrolled his older son. All of the father’s extended family resides in Saskatchewan. 28 The father deposed that he has offered to have the mother involved in the children’s lives and wishes to work with her. He purchased an open ticket for her to travel to Saskatchewan for Christmas 2014, but she did not avail herself of the opportunity. The father deposed that he believes that the mother’s lifestyle has not changed or improved in any way since the parties’ separation. 29 The father earns a good living as an oilrig supervisor, in part presumably because of the extensive travel his position entails. He would prefer to work exclusively in Canada, and he has been looking for such work, but he intends to continue working overseas until he can find remunerative employment that will allow him to stay in Canada. 30 The mother was not employed during the time the parties cohabited. Foster v. Jaques Rivoalen A.C.J.Q.B. 135

31 The father deposed that the parties were left horribly in debt when they separated. 32 The father deposed that he needs to maintain his current employment in order to pay the expenses associated with raising the children and the family bills with which he was left. 33 The mother has not provided any financial support to the children since the parties’ separation in December 2014.

B. The Mother’s Evidence 34 The majority of the mother’s evidence can be characterized as essentially a denial of the father’s allegations of her irresponsibility as a mother, violence, anger management issues, excessive consumption of alcohol, drug use and partying lifestyle. She says the father is the one with the problems. 35 The mother acknowledges in her evidence that on December 2, 2014, she was drinking at a local lounge and that her youngest boy, then not yet two years old, did end up being left alone in her vehicle in an outdoor parking lot. She purports to explain it away, however, by saying that the child was out with her and her mother and that, at the time he was observed to be alone in the vehicle that winter afternoon, which prompted two people to contact the police, the child was actually left in the care of the grandmother. She had encouraged the mother in this case to seek sol- ace in the lounge, to help her through a difficult time, the anniversary of her brother’s murder. 36 There was no affidavit evidence from the mother’s mother, or anyone else, to shed light on the watershed incident of December 2, 2014. The mother simply states, as though it exonerates her from the allegations that are relevant to the family proceedings before the court, that the criminal charges against her were ultimately stayed. She exhibited selectively a copy of certain Provincial Court documents relating to the laying and staying of the charges against her, but she did not exhibit the Crown’s particulars, her Recognizance or any other evidence that would shed light on what led to her charges or what inspired the Crown to stay the proceedings in September 2015. 37 The mother acknowledged in her evidence that the Agency became involved with her after the incident of December 2, 2014, but she empha- sized that its file relating to that incident had been closed. She also exhibited a letter from the Agency in which it simply stated that it closed her protection file effective October 16, 2015. 136 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

38 The mother acknowledges that there was also a previous incident while the children were in her care where the agency was contacted. She denies that an agency of Child and Family Services was contacted because she left the children in her vehicle while drinking in the establishment alongside the highway, but offers no evidence as to what, according to her, caused the agency to act on a complaint and interview her at that time. She is content to rest on the fact that the agency “did not intervene” and has since “closed its file” relating to that incident. 39 With respect to the incident that resulted in her being charged with assault with a weapon, the mother deposed that it was actually she who summoned the police to the parties’ residence on that occasion, in response to an argument that the father had begun with her, and that, inex- plicably, she was the one who ended up being charged. She offered no other evidence or explanation of the aftermath. However, the father deposed that, bearing in mind that she was the mother of their children, and after she told him she had undertaken anger management training or a program of that nature, he worked with her to get the charge dropped.

III. The Agency’s Position 40 The two agencies of Child and Family Services with which the mother was involved in the past did not participate in the argument of her motion. Nevertheless, after that argument before me on December 15, 2015, I was left concerned about the incomplete and contradictory state of the evidence relating to the agencies and the events that brought the mother to their attention. All that I really knew from the mother’s evidence was that the Agency closed the file it opened in response to the incident of December 2, 2014, and that of course was done after the Agency learned that the father was granted sole custody by the Final Or- der pronounced in August 2015. I therefore wrote to the Agency, that is, the Agency most recently involved with the mother, and asked for its position with respect to her having unsupervised access to the children. 41 Counsel for the Agency communicated its position in a letter dated December 22, 2015. 42 The Agency has no protection concerns with respect to the father. 43 The Agency confirmed that it did indeed close its latest file after the father was granted sole custody of the two children. Given the prior protection concerns with respect to the mother, however, counsel for the Agency stated that “if she were to obtain shared parenting [the Agency] Foster v. Jaques Rivoalen A.C.J.Q.B. 137

will want to become involved, assess her capacity to parent and determine if other supports/monitoring is necessary for the mother.” 44 Unfortunately, the statement of the Agency’s position did not address what position it would take with respect to the mother pursuing unsupervised access to the children before the trial in December 2016. The court is therefore left in the dark in this regard. Light may perhaps be shed on that question between now and the trial in December 2016.

IV. The Law and Its Application to This Case 45 When a parent moves children from one jurisdiction to another, or even to a place within a jurisdiction that frustrates another parent’s right of access, courts take notice. As Scott C.J.M. has stated, “This is because any change of residence touches at the very core of custody and access” (Gamble v. Dyck-Gamble, [2000] M.J. No. 140, 145 Man. R. (2d) 145 (Man. C.A.)). Consequently, courts will often pronounce orders that restrain such moves or that restore prior arrangements. This is especially so at a pre-trial stage. 46 Where parties cannot agree on the place where children will reside, that is best determined following a trial, where all relevant viva voce testimony can be tested live and considered, rather than receiving evidence through affidavits and transcripts where available. This is the case whether or not one parent has sole custody, notwithstanding a prima facie right to make all decisions with respect to the children without consulting the non-custodial parent. 47 There is a long line of cases in which courts have prohibited a parent from moving a child before a trial where the issue of his or her residence has been adjudicated. That those cases are not uncommon does not, however, establish a prohibition of general application. Not every move of a child before trial that frustrates a non-custodial parent’s enjoyment of access will be restrained or reversed. It all depends on the facts of each case and what best serves the child. The bottom line at a trial, on an interim motion or, as here, on a pre-trial motion to vary a Final Order, is the best interests of the child. 48 I pause to stress that the overriding concern on this motion is the best interests of the children in this case. That is the proverbial golden thread that runs through mobility cases. This must not be forgotten in response to the pleas of a parent whose ability to enjoy access to her children has been thwarted by their move to another province. The interests of neither parent can trump or overshadow those of the children. The paramountcy 138 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

of their interests is statutorily enshrined in section 2(1) of The Family Maintenance Act, C.C.S.M. c. F20. I must of course take into consideration the interests of both parents, but those interests are secondary to those of the children. 49 There are exceptional cases where the best interests of children would not be served by restraining or quashing their move by a parent before a trial, and this is one of them. Having regard to the interests of all concerned, and giving due weight to each, I cannot justify forcing the father in this case to return the children to Manitoba. 50 I have of course given due consideration to the factors enunciated in the Supreme Court of Canada’s important mobility decision Gordon v. Goertz, [1996] S.C.J. No. 52, 19 R.F.L. (4th) 177 (S.C.C.). I have also taken guidance from and endorse the analysis and comments of my former colleague Yard J. in Zacharias v. Zacharias, 2012 MBQB 199, 281 Man. R. (2d) 103 (Man. Q.B.). 51 Gordon v. Goertz expressly condones looking at the reasons the father moved the children, although that ought not to be done in every case. At paragraph 49(7)(e) of the decision, McLachlin J. (as she then was) made it clear that the custodial parent’s reasons for moving a child should be considered “only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child”. Here, the father moved the children to meet their financial and care needs. 52 The father found himself in an unenviable position after his parents became unable to continue the kind of yeoman’s service they offered until November 2015. He wanted to keep his remunerative employment. He wanted to continue to provide financially for his children and to pay off his family’s debts. Most importantly, he needed to find a way for his children to receive the day-to-day care they needed when he is away from the country working for five weeks every five weeks. The only way he could do all of that was to move with the children to Saskatchewan. I find that all of that was in the best interests of the children. 53 The father has acted responsibly. He has obtained a Final Order of sole custody. He has enlisted the assistance of his extended family to care for the children while he is away at work. The children have been living this pattern of five weeks with their father and five weeks with their paternal grandparents for over one year now, all with the blessing of the Agency before it closed its file. Foster v. Jaques Rivoalen A.C.J.Q.B. 139

54 I return now to the mother’s evidence and why granting an order that would see the children returned at this juncture to Manitoba would not serve their best interests. 55 As is often the case in hotly contested matters, the mother’s evidence is in sharp contrast to that of the father. If the parties undertook cross- examinations, the court may have been in a better position to assess the evidence available before the parties’ forthcoming trial. However, even in the absence of effective cross-examinations, there are features of this family’s history that make it exceptional. This is not a typical case by any means. The domestic setting in which the discrete issue before me developed is highly unusual. 56 In the face of the myriad of allegations against her, the mother’s evidence is weak. 57 The closing of a protection file by an agency of Child and Family Services or the staying of a criminal charge of abandonment by the Crown does not somehow eradicate concerns that arose as a result of incidents that gave rise to the opening of a protection file or the laying of a criminal charge. Such incidents do not magically become cloaked by some privilege or immune from mention or consideration; they do not cease juristically to exist. Certainly, my concerns about the mother’s current parenting abilities and her suitability for unsupervised access to the children are not extinguished by the closing of her Agency file or the staying of her most recent criminal prosecution. 58 The mother tries to put a good spin on things, but that is not enough. It does not dispel the cloud that hangs over her parenting track record. Her evidence falls short of what would have tipped the scales in favour of upsetting the current arrangements pending the forthcoming trial, where a determination will be made of the parenting arrangements that best serve the interests of the children. She does not propose a realistic scenario, consistent with the best interests of the children, if they were returned to Manitoba before the trial later this year. 59 Granting the mother’s request to compel the return of the children to Manitoba would disrupt an arrangement that is working for the children, made possible only by the support of loving grandparents, and the success of which no one challenged until the move to Saskatchewan, in favour of an arrangement that is, at best, fraught with uncertainties. 60 The mother has had very limited contact with the children for over a year, and always under the supervision of an adult. She has recently started working and her living arrangements are in flux. To suggest that 140 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

the children be returned to Manitoba at this time, with her ability to parent them still very much at issue, is not in their best interests. The children require stability. They are getting it from their father and paternal grandparents. It should continue. 61 I find that the father’s arrangement for the children between now and the forthcoming trial much better serves their interests than does the scenario in which they would find themselves if I exercised my discretion in favour of the mother. 62 I acknowledge that the mother has voluntarily taken some courses to improve her parenting skills, manage her anger and come to terms with her substance abuse. She should have contact with the children, by Skype, telephone and in person, as may be arranged between her and the father. The parties should now focus on establishing the mother’s access to the children. 63 Nothing in these reasons should affect the outcome of the parties’ trial later this year. There things shall be dealt with afresh. All that I am ruling upon is the discrete issue before me. 64 The mother’s motion requesting that the children be returned to Man- itoba is dismissed. Motion dismissed. D. (D.M.) v. D. (R.L.) 141

[Indexed as: D. (D.M.) v. D. (R.L.)] D.M.D., Claimant and R.L.D., Respondent British Columbia Supreme Court Docket: New Westminster E42511 2015 BCSC 2332 Loo J. Heard: June 3-7, 10-13, October 28, 30-31, November 1, 4-8, 2013; March 31, August 5-8, 2014; January 12, 15, February 23-27, March 4, May 11, 2015 Judgment: December 11, 2015 Family law –––– Support — Child support under federal and provincial guidelines — Determination of spouse’s annual income — Imputed income — Financial disclosure –––– Parties began living together in May 2001, married in May 2004, separated in July 2010, and divorced in November 2013 — Mother had child from previous relationship (step-child) who resided primarily with parties while they were together and parties had one child together — Since 2011, step-child had had no parenting time with father and spent alternate weeks with mother and biological father — Father was oral and maxillofacial surgeon and had over $3 million in income available to him for support in 2010 and over $2 million in 2011 and 2012 — Mother was certified dental assistant but had stopped working shortly before child’s birth — In 2010, consent order was made ordering joint custody and joint guardianship, that parties follow shared parenting regime, that custody and access report be prepared and that father pay interim maintenance and support to mother of $8,000 each month — In 2012, interim consent orders were made ordering father to pay child support of $15,000 each month for child and step-child, pay all tuition, books and uniform costs related to their attendance at private schools and pay spousal support of $15,000 each month — In August 2014, father sold his practice for $3 million and now worked for significantly less as associate in practice — Fa- ther brought family law action and parties settled issues relating to division of assets and mother’s claim for ongoing and retroactive spousal support — Issues including retroactive and prospective child support and step-parent support were set over for trial — Father’s adjusted line 150 income for 2013 was $2,524,589.32 — Father’s financial affairs were complex and considering all evidence, there was nothing that suggested that father had not reported all of his income — It could only be said that father’s income for 2014 for Federal Child Support Guidelines purposes was in excess of $150,000 and in or around $2 million which was largely in part from sale of his practice — Father’s projected 142 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

earnings were in range of $400,000 annually and reasonable needs of child and step-child had not suffered nor would suffer as result of father’s choice to sell practice and work less — It was not appropriate to impute income to father. Family law –––– Support — Child support under federal and provincial guidelines — Determination of spouse’s annual income — Imputed income — Deliberately unemployed or under-employed –––– Parties began living together in May 2001, married in May 2004, separated in July 2010, and divorced in November 2013 — Mother had child from previous relationship (step-child) who resided primarily with parties while they were together and parties had one child together — Mother was certified dental assistant but had stopped working shortly before child’s birth — In 2010, consent order was made ordering joint custody and joint guardianship, that parties follow shared parenting regime, that custody and access report be prepared and that father pay interim maintenance and support to mother of $8,000 each month — In 2012, interim consent orders were made ordering father to pay child support of $15,000 each month for child and step-child, pay all tuition, books and uniform costs related to their attendance at private schools and pay spousal support of $15,000 each month — In August 2014, father sold his practice for $3 million and now worked for significantly less as associate in practice — Father brought family law action and parties settled issues relating to division of assets and mother’s claim for ongoing and retroactive spousal support — Issues including retroactive and prospective child support and step-parent support were set over for trial — For 2013 employment income of $25,000 per year was imputed to mother plus $15,000 investment income — For 2014 employment income of $25,000 per year was imputed to mother plus $60,000 investment income — For 2015 employment income of $55,000 per year was imputed to mother plus investment income of $60,000, totaling $115,000 — Mother was intentionally unemployed — Mother could not wholly blame father for her failure to find employment or retrain — Mother was capable of more than minimum wage employment — Mother had legal obligation to take steps to find employment based on her age, health, education, and prior work history. Family law –––– Support — Child support under federal and provincial guidelines — Determination of award amount — Whether use of child support tables appropriate –––– Parties began living together in May 2001 but lived separate and apart from December 2001 to May 2002 and from December 2003 to March 2004 — Parties were married in May 2004, separated in July 2010, and divorced in November 2013 — Mother had child from previous relationship (step-child) who resided primarily with parties while they were together and parties had one child together — Since 2011, step-child had no parenting time with father and spent alternate weeks with mother and biological father — Father was oral and maxillofacial surgeon and had over $3 million in income available to him for support in 2010 and over $2 million in 2011 and 2012 — D. (D.M.) v. D. (R.L.) 143

Mother was certified dental assistant but had stopped working shortly before child’s birth — In 2010, consent order was made ordering joint custody and joint guardianship, that parties follow shared parenting regime, that custody and access report be prepared and that father pay interim maintenance and support to mother of $8,000 each month — In 2012, interim consent orders were made ordering father to pay child support of $15,000 each month for child and step- child, pay all tuition, books and uniform costs related to their attendance at private schools and pay spousal support of $15,000 each month — In August 2014, father sold his practice for $3 million and now worked for significantly less as associate in practice — Father brought family law action and parties settled issues relating to division of assets and mother’s claim for ongoing and retroactive spousal support — Issues including retroactive and prospective child support and step-parent support were set over for trial — Parties did not spend “lavishly” on children and children’s standard of living before separation and after separation was not much different — On all evidence, from July 2010 to July 2013 when child went to live with father, appropriate amount of support payable by father to mother was $9,000 per month. Family law –––– Support — Child support under federal and provincial guidelines — Determination of award amount — Extraordinary expenses — Whether expense extraordinary –––– Parties began living together in May 2001 but lived separate and apart from December 2001 to May 2002 and from December 2003 to March 2004 — Parties were married in May 2004, separated in July 2010, and divorced in November 2013 — Mother had child from previous relationship (step-child) who resided primarily with parties while they were together and parties had one child together — Father was oral and maxillofacial surgeon and had over $3 million in income available to him for support in 2010 and over $2 million in 2011 and 2012 — Mother was certified dental assistant but had stopped working shortly before child’s birth — In 2010, consent order was made ordering joint custody and joint guardianship, that parties follow shared parenting regime, that custody and access report be prepared and that father pay interim maintenance and support to mother of $8,000 each month — In 2012, interim consent orders were made ordering father to pay child support of $15,000 each month for child and step-child, pay all tuition, books and uniform costs related to their attendance at private schools and pay spousal support of $15,000 each month — In August 2014, father sold his practice for $3 million and now worked for significantly less as associate in practice — Fa- ther brought family law action and parties settled issues relating to division of assets and mother’s claim for ongoing and retroactive spousal support — Issues including retroactive and prospective child support and step-parent support were set over for trial — Issues relating to child support involved not only presumptive child support provisions of s. 3 of Federal Child Support Guidelines, but also ss. 4, 5 and 19 which deal with income over $150,000, spouse in place of parent and imputing income — Child’s private school tuition and related fees 144 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

did not meet definition of “extraordinary” set out in s. 7(1.1) of Guidelines and did not qualify as s. 7 expense. Family law –––– Support — Child support under federal and provincial guidelines — Application of guidelines — Who is a parent –––– Parties began living together in May 2001 but lived separate and apart from December 2001 to May 2002 and from December 2003 to March 2004 — Parties were married in May 2004, separated in July 2010, and divorced in November 2013 — Mother had child from previous relationship (step-child) who resided primarily with parties while they were together and parties had one child together — Since 2011, step-child had no parenting time with father and spent alternate weeks with mother and biological father — Father was oral and maxillofacial surgeon and had over $3 million in income available to him for support in 2010 and over $2 million in 2011 and 2012 — Mother was certified dental assistant but had stopped working shortly before child’s birth — In 2010, consent order was made ordering joint custody and joint guardianship, that parties follow shared parenting regime, that custody and access report be prepared and that father pay interim maintenance and support to mother of $8,000 each month — In 2012, interim consent orders were made ordering father to pay child support of $15,000 each month for child and step-child, pay all tuition, books and uniform costs related to their attendance at private schools and pay spousal support of $15,000 each month — In August 2014, father sold his practice for $3 million and now worked for significantly less as associate in practice — Father brought family law action and parties settled issues relating to division of assets and mother’s claim for ongoing and retroactive spousal support — Issues including retroactive and prospective child support and step-parent support were set over for trial — Parties did not spend “lavishly” on children and children’s standard of living before separation and after separation was not much different — Appropriate amont of child support payable by father to mother for step-child was $1,500 per month as step-child earned spending money from part-time employment, biological father contributed to his support, step-child had more than $163,000 in trust funds for his education or other needs and father had no parenting time or little contact with him. Cases considered by Loo J.: Barker v. Barker (2005), 2005 BCCA 177, 2005 CarswellBC 717, 15 R.F.L. (6th) 43, 210 B.C.A.C. 199, 348 W.A.C. 199, 45 B.C.L.R. (4th) 43, [2005] B.C.J. No. 687 (B.C. C.A.) — distinguished Chartier v. Chartier (1999), 1999 CarswellMan 25, 1999 CarswellMan 26, 235 N.R. 1, 168 D.L.R. (4th) 540, 43 R.F.L. (4th) 1, [1999] 4 W.W.R. 633, 134 Man. R. (2d) 19, 193 W.A.C. 19, [1999] 1 S.C.R. 242, [1998] S.C.J. No. 79 (S.C.C.) — considered Debora v. Debora (2004), 2004 CarswellOnt 4987, 8 R.F.L. (6th) 32, [2004] O.J. No. 4826 (Ont. S.C.J.) — considered D. (D.M.) v. D. (R.L.) 145

Debora v. Debora (2006), 2006 CarswellOnt 7633, [2006] O.J. No. 4826, 218 O.A.C. 237, 33 R.F.L. (6th) 252, 83 O.R. (3d) 81, 275 D.L.R. (4th) 698, 52 R.P.R. (4th) 191, 33 R.F.L. (6th) 232 (Ont. C.A.) — considered Dyck v. Dyck (2009), 2009 MBQB 112, 2009 CarswellMan 176, 239 Man. R. (2d) 137, [2009] M.J. No. 139 (Man. Q.B.) — referred to Ewing v. Ewing (2006), 2006 ABQB 389, 2006 CarswellAlta 674 (Alta. Q.B.) — referred to Francis v. Baker (1999), [1999] S.C.J. No. 52, 1999 CarswellOnt 2734, 1999 CarswellOnt 2948, 44 O.R. (3d) 736 (headnote only), 177 D.L.R. (4th) 1, 246 N.R. 45, 50 R.F.L. (4th) 228, 125 O.A.C. 201, [1999] 3 S.C.R. 250 (S.C.C.) — followed Goguen v. Goguen (2008), 2008 BCSC 1747, 2008 CarswellBC 2765 (B.C. S.C.) — referred to H. (J.E.) v. H. (P.L.) (2014), 2014 BCCA 310, 2014 CarswellBC 2259, 49 R.F.L. (7th) 285, 376 D.L.R. (4th) 670, 63 B.C.L.R. (5th) 107, [2014] 12 W.W.R. 265, 360 B.C.A.C. 15, 617 W.A.C. 15, [2014] B.C.J. No. 1996 (B.C. C.A.) — followed H. (U.V.) v. H. (M.W.) (2008), 2008 BCCA 177, 2008 CarswellBC 798, 292 D.L.R. (4th) 433, 254 B.C.A.C. 183, 426 W.A.C. 183, 59 R.F.L. (6th) 25, [2009] 2 W.W.R. 63, 86 B.C.L.R. (4th) 199, [2008] B.C.J. No. 717 (B.C. C.A.) — followed Hollenbach v. Hollenbach (2000), 2000 BCCA 620, 2000 CarswellBC 2282, 82 B.C.L.R. (3d) 228, 10 R.F.L. (5th) 280, 194 D.L.R. (4th) 151, 144 B.C.A.C. 193, 236 W.A.C. 193, [2000] B.C.J. No. 2316, [2000] B.C.T.C. 65 (B.C. C.A.) — followed Jendruck v. Jendruck (2014), 2014 BCCA 320, 2014 CarswellBC 2375, 62 B.C.L.R. (5th) 139, 376 D.L.R. (4th) 523, 50 R.F.L. (7th) 23, [2014] B.C.J. No. 2086, 360 B.C.A.C. 55, 617 W.A.C. 55 (B.C. C.A.) — considered Leskun v. Leskun (2006), 2006 SCC 25, 2006 CarswellBC 1492, 2006 Car- swellBC 1493, 349 N.R. 158, [2006] S.C.J. No. 25, 268 D.L.R. (4th) 577, 226 B.C.A.C. 1, 373 W.A.C. 1, [2006] 1 S.C.R. 920, 34 R.F.L. (6th) 1, 62 B.C.L.R. (4th) 197 (S.C.C.) — followed M. (G.) v. S. (S.) (2012), 2012 BCSC 1491, 2012 CarswellBC 3302 (B.C. S.C.) — referred to Marquez v. Zapiola (2013), 2013 BCCA 433, 2013 CarswellBC 3038, 36 R.F.L. (7th) 22, 51 B.C.L.R. (5th) 55, 344 B.C.A.C. 133, 587 W.A.C. 133 (B.C. C.A.) — followed Metzner v. Metzner (2000), 2000 BCCA 474, 2000 CarswellBC 1696, [2000] 9 W.W.R. 379, 80 B.C.L.R. (3d) 133, [2000] B.C.J. No. 1693, 9 R.F.L. (5th) 162, 190 D.L.R. (4th) 366, 141 B.C.A.C. 84, 231 W.A.C. 84 (B.C. C.A.) — considered Moors v. Moors (2013), 2013 ABQB 740, 2013 CarswellAlta 2686, 579 A.R. 59 (Alta. Q.B.) — referred to 146 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

Pakka v. Nygard (2002), 2002 CarswellOnt 3403, 61 O.R. (3d) 328, [2002] O.J. No. 3858 (Ont. S.C.J.) — followed V. (L.R.) v. V. (A.A.) (2003), 2003 BCSC 1886, 2003 CarswellBC 3146, 21 B.C.L.R. (4th) 358, 47 R.F.L. (5th) 422, [2003] B.C.J. No. 2888 (B.C. S.C.) — considered Watts v. Willie (2004), 2004 BCCA 600, 2004 CarswellBC 2795, 8 R.F.L. (6th) 456, 247 D.L.R. (4th) 54, 206 B.C.A.C. 192, 338 W.A.C. 192, [2004] B.C.J. No. 2482 (B.C. C.A.) — considered Yao v. Li (2013), 2013 BCSC 1314, 2013 CarswellBC 2236 (B.C. S.C.) — referred to Yeung v. Silva (2014), 2014 BCSC 2436, 2014 CarswellBC 3901 (B.C. S.C.) — referred to Statutes considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) s. 15.2 [en. 1997, c. 1, s. 2] — considered s. 15.2(6)(d) [en. 1997, c. 1, s. 2] — considered Family Relations Act, R.S.B.C. 1996, c. 128 s. 67 — considered Regulations considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Federal Child Support Guidelines, SOR/97-175 Generally — referred to s. 3 — considered s. 3(1) — considered s. 4 — considered s. 4(b)(ii) — referred to s. 5 — considered s. 7 — considered s. 7(1)(d) — considered s. 7(1.1) “extraordinary expenses” [en. SOR/2005-400] — considered s. 7(1.1) “extraordinary expenses” (a) [en. SOR/2005-400] — considered s. 7(1.1) “extraordinary expenses” (b) [en. SOR/2005-400] — considered s. 9 — considered s. 18 — considered s. 19 — considered s. 19(1)(a) — considered s. 19(1)(e) — considered Sched. I, s. 4(f) — referred to Sched. III — referred to D. (D.M.) v. D. (R.L.) Loo J. 147

Words and phrases considered: appropriate If the ordinary meaning of the word “inappropriate” is broadly defined to mean “unsuitable”, then “appropriate” must be broadly defined to mean “suitable”.

ACTION by father for determination of family law issues, including child support.

G.K. Thomas, for Claimant J.A.W. Schuman, Q.C., J. Desilets, for Respondent

Loo J.: A. Introduction 1 The issues in this case concern the amount of child support payable for a child of the marriage, and a step-child, when the payor’s income is over $150,000. The payor parent contends that he has overpaid child support and is no longer obligated to pay step-child support. The recipient parent contends that she has been underpaid child support by $472,000, and seeks an order imputing to the payor an income of $2,300,000 and an order that he pay her $14,000 a month for step-child support. 2 The claimant Dr. D was born November 10, 1964 and is 51 years old. The respondent Ms. A (she has since changed her name) was born May 26, 1969 and is 46 years old. 3 The parties began living together in May 2001, but lived separate and apart from December 2001 to May 2002 and from December 2003 to March 2004. They were married on May 29, 2004. The parties separated on July 2, 2010 when Dr. D moved out of the matrimonial home. The parties were divorced on November 8, 2013 and Dr. D. has since remarried. There is one child of the marriage, ML, who was born July 11, 2001 and is now 14 years old. Ms. A has a son, DJ, from her former marriage to RJ. DJ was born December 12, 1998 and is now 16 years old. 4 RJ and Ms. A have joint custody of DJ. DJ resided primarily with the parties when they were together, but was with RJ on alternate weekends, and one evening or overnight a week. Around the time that the parties separated, DJ began living equally on a “3-4/4-3” rotation with RJ and Ms. A. Since 2011, DJ spends alternating weeks with RJ and Ms. A. He has no parenting time with Dr. D. 5 Dr. D is an oral and maxillofacial surgeon. He had over $3 million in income available to him for support in 2010, and over $2 million in 2011 148 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

and 2012. On August 31, 2014 he sold his practice for $3 million, and now works significantly less as an associate in the practice. He anticipates that his future earnings will be in the range of $400,000 to $500,000. Ms. A seeks to impute income to him. 6 Ms. A was a certified dental assistant (CDA). She worked full-time for Dr. D from October 1997 until June 2001, shortly before ML’s birth. However, she was paid a salary for the purposes of income splitting. Since separation, Ms. A has not sought employment or re-training. Dr. D seeks to impute income to her. 7 Dr. D commenced this family law case on September 7, 2010. The trial commenced on June 4, 2013. On June 5, 2013 the parties settled the issues relating to the division of assets and Ms. A.’s claim for ongoing and retroactive spousal support. The trial then focused on the issue of parenting time with ML. Despite orders that the parties share equal parenting time with ML, since mid-July 2013, ML has resided only with Dr. D. 8 The trial was adjourned from time to time for various reasons, but primarily so that the experts could update their reports relating to parenting time for ML, and the parties and ML could engage in counselling to repair the relationship between Ms. A and ML. On August 8, 2014 a comprehensive counselling order was made. Ms. A blames Dr. D for her poor relationship with ML, and Dr. D blames Ms. A, but that is no longer in issue at this time. 9 Before Dr. D completed his case, on January 15, 2015 it was ordered by consent that ML would continue to reside with and in the care of Dr. D., family counselling would continue to March 15, 2016, I remain seized of all court matters, and “the issues of retroactive and prospective child-support and step-parent support (inclusive of basic child support and special or extraordinary expenses, and related arguments about overpayments or under-payments, and the issue of the sale of the Kelowna property hereinafter the Financial Issues...”) be set over to trial commencing January 15, 2015. The trial accordingly proceeded on the Finan- cial Issues, and the parties submitted extensive written closing arguments. 10 These are my reasons for judgment relating to the Financial Issues.

Issues 11 In their written closing arguments, the parties do not agree on the issues to be decided, and cast their arguments in totally different ways. D. (D.M.) v. D. (R.L.) Loo J. 149

12 In my view, the primary issues are: 1. What income, if any, should be imputed to either of the parties? 2. What amount of child support for ML and DJ should have been paid, and is payable, by Dr. D to Ms. A? 3. What amount of child support should have been paid, and is payable, by Ms. A to Dr. D for ML?

B. Background 13 When the parties lived together, they maintained a joint bank account that was used to pay everyday household expenses. Following separation, Dr. D withdrew $9,000 on August 31, 2010 and $65,355.40 on Sep- tember 3, 2010. On September 4, 2010, Ms. A withdrew $25,000 and a further $25,000 from the parties’ line of credit. 14 When they were together, the parties also maintained a joint US dollar bank account, which they used for travel expenses and the maintenance of their condominium in Hawaii. On July 9, 2010, Dr. D withdrew $75,421.13 from the US dollar account. 15 Following separation both parties maintained separate accounts, including separate US dollar accounts. 16 Like many high income professionals, Dr. D relies on his chartered accountant and other professionals for organizing his financial affairs. Until September 2014 when he sold his practice, Dr. D. operated his practice through an operating company (OPCO) in which he held all of the voting shares. He also operated and continues to operate a holding company (HOLDCO) which holds investments, and held shares in OPCO, prior to September 2014. Dr. D is also the trustee of a discretionary family trust which holds voting and non-voting shares in HOLDCO. Dr. D received income from OPCO as T4 employment income and through dividends from HOLDCO and the family trust. 17 The parties agree that at the August 31, 2012 year end the value of marketable securities held by HOLDCO was $3,314,751, and that the shares of OPCO and HOLDCO have a value of $4,620,000 based on the draft report of Vern Blair, chartered accountant and chartered business valuator, dated April 30, 2013. 18 When he was asked about his line 150 income, Dr. D testified that he gives himself income based on what his accountant tells him to do; his accountant “comes up with the numbers”, and “I sign it”. 150 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

19 Dr. D relied on his former office manager Lana Forsythe — who continues to be employed as the office manager of the practice which Dr. D sold — to look after the financial side of his practice. Dr. D relies wholly on Ms. Forsythe to calculate his earnings as an associate in his former practice, and to issue him a cheque in the appropriate amount. 20 Ms. A did not contradict Dr. D on how he handled his finances. She testified that Dr. D’s “financial picture is very complicated”. The money “from his work” went into their joint account, and “that’s how everything got paid”. If they made a “large purchase” such as a vehicle or a vacation they paid cash. Dr. D “would just transfer money” from his corporate account into their joint account, “...and he would just say that his accountant would work out the details at the end of the year as to how it would get done”. 21 At the time of separation the parties had three properties. The former matrimonial home on Hibiscus Court, Abbotsford has an agreed value of $1,475,000 (as of June 2013). The parties also had what Ms. A refers to as their “summer home” in Kelowna where they spent summers and many weekends. They purchased the property for $1,525,000 in 2004, demolished the existing house and constructed a new house at a cost of $1,650,000. On July 15, 2013 the Kelowna house sold for $4,200,000. 22 In March 2010 the parties purchased a condominium in Waikoloa, Hawaii, and renovated the unit. After the renovations were compete, they stayed there only once during an attempted reconciliation, before their final separation. According to Dr. D’s financial statement sworn May 15, 2013, the Hawaii property was valued at $1,307,585.52. The property was sold in early 2013. 23 Dr. D likes nice cars. According to his financial statement sworn May 13, 2013 he had the following vehicles, two of which were acquired after separation: Vehicles Values 2008 Shelby Mustang black book value $39,500 1965 Corvette $90,000 2009 - 911 Porsche Turbo $78,000 2011 Mercedes SUV GL550 $55,000 2012 Ford F350 $8,000 24 In May 2013 Ms. A had a 2008 Corvette valued at $50,000, and a 2008 Cadillac Escalade with a black book value of $23,000. The Esca- lade cost approximately $100,000 when it was purchased. Ms. A has D. (D.M.) v. D. (R.L.) Loo J. 151

since purchased a $53,000 2015 Ford pick-up truck and traded in her Escalade for $15,000. She complained about the Escalade’s fuel consumption. 25 By the time he swore his fifth financial statement on January 26, 2015, Dr. D had sold many of his vehicles, and had only the following two vehicles: 2014 Tesla Model S $100,000 2014 Mercedes ML 550 $70,000 26 Ms. A testified that “we never had to worry about what we were spending or how much we were spending on something. The money was always there....It was just a free-flowing transfer of money all the time between accounts”. There was never a budget, and cost was never a factor. It was “just buy whatever you want kind of thing”. 27 Little or nothing of what Ms. A testified in direct examination about the way in which the parties spent money or vacationed was put to Dr. D in cross-examination. 28 Dr. D testified that it is his nature to love and spoil all of the people in his life, whether it was his friends, Ms. A’s parents, his parents, the children, or Ms. A. He once surprised her by bringing her parents from Win- nipeg on a cruise with them. He said that they had a very privileged life, they could afford things, and felt that after working so hard, having nice things was “100 percent appropriate”. He “grew up with no money”. It was Ms. A’s choice not to spend money on the children, it was his choice that he should. However, the children understand about hard work and money, and about using money wisely. 29 Both children have jobs. 30 Dr. D testified that ML required a laptop for school. Her laptop “died”. Ms. A wanted to have the laptop fixed and they had numerous discussions and disagreements about the laptop. For an early birthday present, Dr. D bought ML a Mac laptop, which I gathered was against the wishes of Ms. A. He said that Ms. A resists spending money like that on the children. If there was a laptop for $1,000 and a laptop for $1,300, she would purchase the $1,000 laptop. 31 Ms. A testified that she and Dr. D discussed the cost of gifts for the children, and “how extensively he wanted to spoil” them. She stated that every child loves to receive gifts. It is all right to give them a gift worth $200. It does not mean you need to buy them a gift worth $600. 152 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

32 Ms. A was asked about her figures of $200 and $600 and whether it would it be unusual to spent $600 on ML for Christmas presents and would that be a high number or a lower number. She replied that she was “kind of guessing”, but $600 would probably be the high number. 33 What is clear from the evidence is that when they were together they disagreed on spending on the children. Dr. D wanted to spend more. Ms. A wanted to spend less.

Orders and Support Payments 34 On September 27, 2010 Master Keighley ordered by consent that: (a) the parties share joint custody and joint guardianship of ML; (b) the parties follow a shared parenting regime based on a two week rotation; (c) Dr. Elterman prepare a section 15 custody and access report, to be paid by Dr. D. and one-half credited to him in the overall settlement of the financial issues; (d) Dr. D. has reasonable access to DJ, after taking into consideration DJ’s views; (e) Dr. D. pay interim maintenance and support to Ms. A. $8,000 each month commencing October 1, 2010, without prejudice; and (f) the parties agree to a s. 67 order under the Family Relations Act preserving all family assets until further order. 35 On December 14, 2011 it was ordered by consent that Ms. A have exclusive occupancy of the former matrimonial home. 36 On March 19, 2012 the following interim consent orders were made: (a) Dr. D. pay Ms. A child support of $15,000 each month for ML and DJ, commencing on February 1, 2012; (b) Dr. D. pay all tuition, books, and uniform costs related to ML’s and DJ’s attendance at private school; and (c) Dr. D. pay Ms. A spousal support of $15,000 each month commencing February 15, 2012 (less $8,000 already paid for February 2012). 37 Following separation, Dr. D paid all of the private school tuition and field trip fees. In 2010, he paid $27,008 for tuition and field trip fees for ML and DJ. In 2011 he paid $29,065. For 2012, the tuition increased to $15,795 and he paid $32,340 for tuition and field trip fees. In September D. (D.M.) v. D. (R.L.) Loo J. 153

2013, DJ began attending public school and had no tuition fees, but Dr. D paid $17,400 for tuition and field trips for ML. 38 Dr. D claims that the private school tuition and related fees are a s. 7 expense and seeks an order that Ms. A reimburse and pay him for her proportionate share. Ms. A contends that the tuition and relates fees are not a s. 7 expense because Dr. D can reasonably cover the expense, taking into account his income. 39 Ms. A testified that when DJ attended private school she paid for his school bus fees and uniforms. Dr. D testified that the bus fees for each child were $1100 each year. Ms. A said the fee was $1,800 a year, and that she contributed towards DJ’s books. I find that she contributed no more than $2,000 a year towards DJ’s education when he attended private school. 40 From separation until June 4, 2013, Dr. D made all of the monthly payments towards the former matrimonial home. He paid $8,666.66 for the line of credit obligations, $927 for property taxes, $850 for property insurance, and $95 for water and sewer rate charges, for a total monthly payment of $10,538.66. He also paid for all of the house maintenance that Ms. A requested, including painting, roof repairs, and pool maintenance. Ms. A paid for the electricity and cable charges. The house was fully paid so there were no mortgage payments. 41 On June 4, 2013, the second day of trial, the property and spousal support issues were resolved and the terms of the consent order included the following: (a) Ms. A retains as her sole property the former matrimonial home (the second Hibiscus property), furniture and contents (except for one half of ML’s baby clothes and school work) and is responsible for the conveyance costs, 2013 property taxes and all other future expenses; (b) Ms. A retains her own vehicles, the 2007 Escalade and the 2008 Corvette; (c) Dr. D pays to Ms. A a compensation payment in a lump sum tax free cash payment of $1,700,000, payable on or before June 30, 2013, in full and final satisfaction of Ms. A’s claims for: • Retroactive spousal support, • Division of Dr. D’s business assets, • Compensation for the Kelowna property, subject to the terms below, 154 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

• Compensation for amounts withdrawn by the parties from bank accounts before and after separation, and • Her claim for vehicle value adjustment compensation; (d) The Kelowna property continues to be listed for sale; and the net proceeds of sale divided in accordance with a formula (set out in the order); (e) Dr. D. retains as his sole and separate property: • Proceeds of sale of the Kelowna property less amounts set forth in the formula, • Shares and assets of OPCO, • Shares and assets of HOLDCO, • Various furnishings, • Bank accounts, investments, and RRSPs in his name, • Vehicles in his name; (f) Each party retains control and use of trust funds for ML and DJ. 42 Ms. A retained trust funds totalling $163,000 for DJ. Dr. D retained trust funds totalling $192,132 for ML. When the parties were together, Dr. D contributed $1,000 a month for each child, for a total of $2,000 a month. Dr. D testified that Ms. A also contributed the child support she received from RJ into DJ’s trust fund. It is agreed that the trust funds for ML and DJ are available to be used for each child’s post-secondary education and other expenses. Neither of the parties has used any of the trust funds for the children. Ms. A testified that she wants to use the trust funds to buy DJ a house and for his education. She is also contributing towards a registered education savings plan for him. 43 Ms. A argues that by virtue of the June 4, 2013 consent order, Dr. D is precluded from claiming from Ms. A any contribution towards the cost of Dr. Elterman’s report. I disagree. The June 4, 2013 order did not vary the September 27, 2010 order. Ms. A should reimburse Dr. D for 15 percent of the cost of Dr. Elterman’s report. 44 It is agreed that the compensation payment due to Ms. A from Dr. D from the sale of the Kelowna property is $38,800. Dr. D has not paid that sum to Ms. A. 45 On July 26, 2013, ML was to have returned to Ms. A. She never returned. On November 8, 2013 the March 19, 2012 order was varied, without prejudice, by reducing Dr. D’s obligation to pay child support to D. (D.M.) v. D. (R.L.) Loo J. 155

Ms. A from $15,000 each month, to $7,500 each month, effective De- cember 1, 2013. The $7,500 a month relates to child support for DJ. 46 From October 2010 to January 2012 Dr. D paid $8,000 a month to Ms. A. The parties agree that as Ms. A was paid retroactive spousal support pursuant to the June 4 2013 order, the $8,000 a month paid by Dr. D from October 2010 to January 2012 should be considered child support. From February 2012 to November 2013 he paid $15,000 for spousal support and $15,000 for child support each month. From December 2013 to June 2014 he paid $15,000 for spousal support and $7,500 for child support. From July 2014 until the present, he has paid spousal support of $15,000 a month but no child support, although the November 8, 2013 order requiring him to pay $7,500 a month has not been varied.

Dr. D’s adjusted line 150 income: 2010 to 2013 47 Vern Blair prepared draft reports dated April 30, 2013 and September 26, 2013. The parties agree that based on Mr. Blair’s income report, Dr. D’s adjusted line 150 income (considering s. 18 of the Federal Child Support Guidelines, SOR/97-175 [Guidelines] and including the income potentially available to Dr. D, notwithstanding that the income may have been retained in the corporations) is as follows: 2010 $3,178,000 2011 $2,769,000 2012 $2,337,000 48 Dr. D’s non-adjusted line 150 income for 2013 is $3,401,368.18. The parties agree that his adjusted line 150 income for 2013 is $2,524,589.32.

Dr. D’s income for 2014 49 In August 2014 Dr. D sold his practice to Dr. E and his company for $3 million. Dr. D produced the share purchase agreement dated August 21, 2014 with its eight attached schedules, and related documents, including a restrictive covenant agreement, and contract for services dated September 1, 2014. 50 Under the terms of the contract for services, starting in September 2014 Dr. D is to provide oral and maxillofacial Surgical Services (defined) every second week on Wednesday and Friday “at the office” and Thursday “at Clayburn Dental Centre”. Every month Dr. D “will be paid an amount equal to the sum of $1,800 plus 40% of amounts collected in 156 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

the preceding month in relation to Surgical Services provided by Dr. D in such month, after deduction of all of Dr. D’s lab costs....”. 51 For the months of September to December 2014 Dr. D was paid $38,517.12, $37,520.71, $32,560.34, and $39,607.04, for a total of $137,412.27, or an average of $34,353 for four months, working six days each month. 52 The parties disagree over Dr. D’s income for 2014. His 2014 T1 Gen- eral Income Tax Return reports a line 150 income of $2,021,038.92, including dividend income of $2,655,176.43. It also reports that his spouse has a net income of $552,850.70, which Dr. D testified relates to the sale of his practice. Neither party had an accountant provide his or her assessment of the adjusted line 150 income, taking into account s. 18 of the Guidelines. I am left only with the parties’ written arguments. 53 Dr. D’s argument on this point is two short sentences. He states that “the dividend income needs to be gross[ed] down to get to the cash value actually received. Dr. D “indicated that the cash value of his dividend income was $1,500,000 meaning that his actual cash receipted income” for 2014 was “$1,900,000, when adding in his other income”. No supporting calculations were provided, and I am not certain how the number was arrived at, or whether it includes any of the income attributed to his current spouse. 54 Ms. A argues that Dr. D’s adjusted line 150 income for 2014 is $3,561,038, by imputing income to him for September to December 2014, inclusive, at $140,000 (approximately $35,000 a month), plus $500,000 of the income attributed to his spouse, then deducting estimated earnings for a CDA, and subject to the Schedule III adjustments for dividend income. 55 I fail to understand why Ms. A seeks to impute income to Dr. D for the months of September to December 2014 based on what he expected to earn, when he provided detailed particulars and documents of the $137,412.27 he actually earned during those months. Dr. D was never questioned about whether the amounts he received were included in his income, and I am unable to determine by simply looking at his tax return whether the amounts were included or not. 56 Ms. A similarly provided no supporting calculations. She argues that Dr. D failed to call his accountant to testify regarding adjustments for dividend income or capital gains under Schedule III of the Guidelines. However, Ms. A could have called his accountant, and Dr. D was never D. (D.M.) v. D. (R.L.) Loo J. 157

questioned in direct or cross-examination in any meaningful way about his 2014 return. 57 Dr. D’s financial affairs are complex, and so is his income tax return, particularly for 2014, the year that he sold his practice. Considering all of the evidence, there is nothing that suggests to me that I should find that Dr. D has not reported all of his income, despite Ms. A’s arguments to the contrary. Doing the best I can, I can only say that Dr. D’s income for 2014 for Guidelines purposes is in excess of $150,000 and in or around $2 million, largely in part from the sale of his practice.

C. Imputation of Income 58 Ms. A argues that Dr. D is intentionally under-employed. He has demonstrated an ability to generate a Guidelines income of more than $2,300,000 each year in the last five years (2010 to 2014), and the court should impute that amount of income to him for the purposes of child support going forward. 59 Dr. D contends that income should be imputed to Ms. A on the basis that her property or cash is not reasonably utilized to generate income, and she is intentionally unemployed. 60 As both parties seek to impute income to the other, I will review the parties’ education, work history, efforts, and other circumstances in some detail. 61 Sections 19(1)(a) and (e) of the Guidelines provide: Imputing income 19. (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; ... (e) the spouse’s property is not reasonably utilized to generate income.

Education, Experience, and Other Circumstances of Dr. D 62 Dr. D attended the University of British Columbia and obtained his BPharm in 1986, MPharm in 1988, and DMD, or doctor of dental 158 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

medicine, in 1992. He did his residency at the University of California, Los Angeles, in 1992, and at Highland Hospital, Oakland, California from 1993 to 1997. In June 1997 he obtained his fellowship in oral maxillofacial surgery from the Royal College of Dentists. 63 During his last year of residency in California, Dr. D was extraordina- rily busy. He was chief resident, studied for two board exams, hired a dental construction company, designed his own surgery office in Abbots- ford with the help of a designer, marketed himself, graduated at the end of June 1997, and opened his 2,300 square foot surgery office for business on July 14, 1997. He borrowed $440,000 to construct the office and obtained a $100,000 line of credit for incidentals. His goal was to pay off the $100,000 line of credit by the end of 1997. He reached that goal. 64 There was no other oral and maxillofacial surgeon in Abbotsford when Dr. D opened his practice. There was also no oral and maxillofacial surgeon in the Cariboo. In November 1997 Dr. D opened a “satellite practice” at a dental office in Williams Lake. He worked there for two days, three times a year for five years and then two days, four times each year. He last worked in Williams Lake in April 2013 because the dentist there sold his practice and was “going a different direction”. 65 In addition to performing surgery in his private surgery office, Dr. D also performed surgery in hospitals. He performed more trauma surgery than any other oral surgeon in the province. Dr. D. was voluntary on call 365 days a year for a busy catchment area that included from New West- minster to the Fraser Valley. 66 RJ testified that he was injured in a motor vehicle accident in October 2005 and his jaw was broken in seven places. He was lying in a hospital bed with his jaw temporarily wired shut when Dr. D walked into the room. RJ said he thought Dr. D was in Kelowna that weekend, but Dr. D told him that he received a call “to come back and work on somebody”. Dr. D successfully rebuilt RJ’s jaw. 67 I mention this only because it supports Dr. D’s assertion that he remained on call whether he was spending his weekends in Kelowna or not. 68 Dr. D was asked by a dentist in Abbottsford who was “one of my biggest referrals” to work at his private dental clinic and take a percent- age of his billings. He agreed, subject to the dentist setting up a surgery office similar to his own surgery office. The dentist did. Dr. D. performed surgery at what is referred to as “Clayburn” office every other Thursday for 10 hours a day. D. (D.M.) v. D. (R.L.) Loo J. 159

69 Around 2007 Dr. D added another 1,500 square feet to his surgery office. 70 Dr. D is energetic and driven. His patients — and revenue — came from “getting out there and meeting any possible referral source”, including doctors and hospitals. The majority of his revenue was from patients who were referred to him from doctors or dentists in Chilliwack, Mis- sion, Abbottsford, and Langley. His work in the hospitals is covered by Medical Services Plan, while his work in his surgery office is paid for privately or through dental insurance. Dr. D earns significantly more performing surgery in his own private office than in the hospitals. 71 As an oral and maxillofacial surgeon Dr. D. did “everything” from taking out wisdom teeth to cosmetic surgery, cancer surgery, and facial reconstruction. His practice did well quickly and “was up to speed” by 2002 or 2003. From 2004 he “made pretty much the same” amount of money. In 2010 the income available to him for support was over $3 million. 72 Dr. D also credits the team of people that worked with him in his office for his financial success. There is little doubt that Dr. D worked hard, and he worked long hours. At times he worked or performed surgery during 12 hour days. 73 Ms. A never contradicted Dr. D’s evidence relating to his work or what he has done to achieve financial success. 74 But competition arrived. In October 2011 an oral surgeon opened a practice a block away from Dr. D’s office, and in October 2012 another oral surgeon opened a practice in Chilliwack. Dr. D’s referrals decreased by 50 percent, and his billings decreased by approximately $1 million in 2011 and 2012. 75 Dr. D provided a breakdown of his gross monthly billings from March 2001 to March 2013. The breakdown clearly shows that the billings slipped a bit in 2011, and then slipped a lot in 2012 and 2013. 76 Dr. D attributes the reduced billings to not only competition from two oral surgeons opening in the neighbouring block and the community, but the fact that more “regular dentists” are now doing more of the surgical procedures that he performs. Dr. D’s evidence was not contradicted. 77 Dr. D testified about the several reasons why he sold his practice. They include the “constant decline in referrals”, and the fact that more dentists are doing “specialists’ work”, or work that he does. He complains that dentistry is changing rapidly and there is “no respect, no 160 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

morals, no ethics”. He no longer finds it satisfying to be dealing with the “referral based population”. He says that he has worked “incredibly hard for 20 years”, he was probably four times busier than the average oral surgeon, and his neck has suffered the consequences. He now has severe osteoarthritis, a herniated disc in his neck, and was in constant pain with his previous surgery schedule. For all of these reasons, he decided not to work so hard. 78 He had his practice valued “just to see where it stood”. He initially sought to hire an associate to work with him and eventually take over his practice. Dr. E seemed “to have the right mentality”, and offered to buy the practice rather than joining him as an associate. Dr. D accepted his offer. 79 With respect to his physical complaints, Dr. D testified that around the middle of 2014 he had an initial meeting with Dr. Holden Chow, a general practitioner, for a physical evaluation of his neck and back. He was referred to Dr. Constantino, a neurologist. He has had two treatments with Dan Bos, a physiotherapist who works with elite athletes and spe- cializes on the spine. He found the treatments “remarkably helpful”. He also had “out of pocket evaluations” by his friend Dr. Peters who practises family medicine and sports medicine. 80 Dr. D does not rely on any expert medical evidence. He makes it clear that no physician has limited him to working six days a month. He says that he knows personally, and from speaking to “counterparts”, that if he works more than that, “it’s not going to result in happy times”. He has undergone intensive rehabilitation, physiotherapy, as well as weekly massages for his neck and back. He says that he can manage to work six days a month without suffering the physical consequences. He says that he has chosen to work substantially less based on his personal needs, and so that he can have less stress and fewer complications in his life. 81 Under the terms of the share purchase agreement, the shares in OPCO were sold to Dr. E or his company, and all his employees retained their jobs. Dr. D is an associate in his former office for a contractual term of two years ending June 1, 2016, with an option to renew for a third year. He is required to work a total of six days a month. He is paid 40 percent of the work he produces and collects in the Abbottsford office and 50 percent of what he produces and collects from the Clayburn office. Each month Ms. Forsythe gives him a print out of the overall collections and writes him a cheque in his personal name based on the collections. Since D. (D.M.) v. D. (R.L.) Loo J. 161

October 2014 his average monthly receipts have been between $30,000 and $35,000. 82 The terms of the share purchase agreement also includes a restrictive covenant which restricts his ability to work or open another practice in a specific geographical location in the Fraser Valley. The terms of his hospital privileges are not capable of being sold or transferred. 83 There is less work from Dr. E than Dr. D anticipated when he sold his practice to him. 84 Dr. D testified that Dr. E has “not performed in a manner he should to attract new referrals” or to maintain the existing referral base. Dr. D and Dr. E do not see eye to eye — at least from Dr. D’s perspective. He expects that he and Dr. E may end their relationship in accordance with the terms of their contract. 85 Dr. D testified that he needed something “other than surgery” to do. He has invested $2 million in a restaurant franchise known as the Noodle Box, against the “cautious” advice of his accountant. 86 The reasons Dr. D made such a significant investment may seem to some to be either a high risk decision, a lack of due diligence, or a little of both. However, Dr. D does not pretend to be a businessman. He examined no financial statements, and saw none until he was asked to produce one during the course of the trial. 87 Dr. D made the investment on the basis that his former personal trainer introduced him to the “primary owner” DW and it was “like meeting your brother”. He and DW talk on the phone weekly, they have similar views and values, and their families get together a few times a year. He was asked to invest in the business and he did. There are at present nine franchise locations in Vancouver, Victoria, and Alberta, and plans for two to three more each year. The business is “really in its infancy” and Dr. D expects the business to operate with a deficit for at least five to seven years before there are any positive returns. 88 Dr. D has no written agreement and few documents relating to his investment in the Noodle Box. They are in the process of preparing and entering into a share purchase agreement. He is obviously very enthusi- astic about the people involved in the business and the restaurant itself. 89 Dr. D or his company also own a share of a building in Maple Ridge and the dental practice within it. He explained that he is “in business” with a “great friend for 18 years”. She built “a huge dental practice” in the Clayburn office where he worked. She and her husband divorced. 162 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

Her husband never worked outside of the home, and she “suffered greatly in the divorce”. The banks would not lend her money to purchase the practice, but Dr. D purchased a 26 percent interest in the building and the dental practice within it for approximately $1.4 million of borrowed money (it seems), because to use his turn of phrase, he loves her dearly. She receives 50 percent of her billings and he receives the remaining 50 percent, and pays for the office overhead, including staff salary and benefits. In the short term, he has “the short end of the stick”, because his income from her practice is currently reducing his debt on the building. He expects a return in 10 years when she retires, and he sells the practice and presumably his interest in the building. Dr. D states that he “invested more in a friend than a business”.

Analysis and Conclusion on Imputing Income to Dr. D 90 Ms. A relies on Watts v. Willie, 2004 BCCA 600 (B.C. C.A.), where the Court of Appeal considered s. 19(1)(a) of the Guidelines and stated at paras. 23-24: [23] That brings me to the second question: Was the under-employment reasonable? If, as it appears, the father is travelling for pleasure, then a court may consider that to be the kind of intentional under- employment that attracts imputation of his normal income, bearing in mind the general rule as formulated in Donovan [Donovan v. Dono- van (2000), 190 D.L.R. (4th) 696, 2000 MBCA 80] that “a parent cannot avoid child support obligations by a self-induced reduction of income”. [24] Counsel for the father argues that s. 19 of the Guidelines is discretionary and we should be reluctant to interfere. As I have said, I think the chambers judge erred in principle in the exercise of his discretion by failing to appreciate the impact of the father’s deferred income scheme. 91 Ms. A also relies on Marquez v. Zapiola, 2013 BCCA 433 (B.C. C.A.) [Marquez] at paras. 36 and 37: [36] For the purposes of both child and spousal support, there is a broad judicial discretion to impute income to either or both spouses. However, the party seeking to have income imputed to the other spouse has the burden of establishing an evidentiary basis for such a finding. [37] The test for imputing income for intentional under-employment or unemployment is one of reasonableness, having regard to the parties’ capacity to earn income in light of their age, education, health, D. (D.M.) v. D. (R.L.) Loo J. 163

work history and work availability. A spouse’s capacity to earn income will include that person’s ability to work or to be trained to work. [citations omitted.] 92 In my view, the facts in Marquez should be considered. In that case the parties met in Argentina where the wife was an assistant professor in the engineering department at a university in Argentina. They moved to Canada where they married. The wife’s educational qualifications were not transferrable to Canada and she could not find work. She remained at home, looked after the household and the children, completed some courses at BCIT and did volunteer work. The parties separated after 19 years of marriage, when their children were 13 and 16 years old. The wife expressed an interest in taking courses to become a secretary. When the parties divorced some 18 months following separation, the wife was 54 years old. By the time of trial, she had not worked outside the home for 20 years. She had ongoing difficulty with the English language, and various health issues, including depression, fibromyalgia and ulcers. The trial judge found that the wife’s ability to obtain employment and her capacity to achieve economic self-sufficiency were limited but imputed to her an annual income of $25,000. The Court of Appeal, in reversing the decision, stated: [47] Moreover, self-sufficiency must be considered in the context of the marital standard of living. Here, the post-separation income disparity between the spouses is significant. A spousal support award that provides the appellant with an annual income of $18,000 only, with no evidentiary basis to assume she has the capacity to earn an annual income of $25,000 or a finding that she is intentionally unemployed, is clearly inadequate to meet both the compensatory and non- compensatory level of support to which she is entitled. It seems to me that the better route to address any concerns the trial judge may have had about the appellant’s efforts to retrain and attempts to obtain some form of employment would have been to order a review of the amount of her support after a reasonable period of time. In my view, two years would have been a reasonable period to meet that purpose. 93 In Jendruck v. Jendruck, 2014 BCCA 320 (B.C. C.A.), the Court of Appeal reviewed the law relating to imputing income. In that case, the parties separated after 34 years of marriage. Their children were no longer dependant. The husband was the primary income earner, and the wife had not worked outside the home for the last 12 years of their marriage. However, she ran a daycare in the home before separation, and earned approximately $4,000 in the business’ most profitable year. Her 164 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

daycare business ended around the time of separation. The trial took place two years following separation. The wife was then 57 years old (she was 58 years old at the time of the hearing of the appeal) and had not re-established her daycare in the former matrimonial home as she had previously indicated she would, testifying that she was mentally and physically exhausted. The Court of Appeal referred to s. 15.2 of the Di- vorce Act and stated: [16] Consistently, the courts have affirmed and applied the objective in the Divorce Act of striving for economic self-sufficiency, while recognizing that attainment of full economic self-sufficiency may not be practicable. To the degree effort could be made by a party to contribute to his or her own support in the circumstances, and effort has not been made, the courts have said the consequences of that party’s choice falls on them. The courts do not, and cannot, say a person must take up any particular employment. It is a free society in which people may choose how to spend their hours. However, where the effort to contribute to one’s own support is deemed insufficient in all the circumstances, the court will place the consequence of the inadequate effort on the person whose choice it is, and may do so by the vehicle of imputing income for under-employment. ... [21] Nor do I consider the alternate basis for refusing to impute income, being that any paid employment Mrs. Jendruck was likely to find would probably be paid at minimum wage and would be a job that she likely would not be happy with, a valid basis to excuse Mrs. Jendruck from looking for work. This conclusion, it should be said, is not drawn from her testimony. It may be that Mrs. Jendruck’s re- entry into the world of paid employment would be as the judge described, but minimum wage is not far from the pay scale at which Mrs. Jendruck started her last employment, and happiness with a position is not the measure of a reasonable person seeking an income- earning opportunity. The description in Van Gool v. Van Gool (1998), 64 B.C.L.R. (3d) 94, 44 R.F.L. (4th) 314 of Justice Prowse, although made in the context of a child support case, is apt: [34] While it is true that Ms. Dryden has limited work experience and job skills, this does not explain her failure to pursue employment which does not require significant skills, or employment in which she could learn the necessary skills on the job. While these would doubtless be jobs at the low end of the wage scale, this Court has never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because they could D. (D.M.) v. D. (R.L.) Loo J. 165

not obtain interesting or highly-paid work. Rather, this Court has made it clear that a person is expected to take reasonable steps to obtain employment commensurate with such factors as their age, state of health, education, skills and work history. [22] The court is concerned here with the extent of Mr. Jendruck’s financial obligation to his former wife. While she may choose to forego remunerative employment as a matter of preference, Mr. Jen- druck is not required to bear the burden of that choice if it is not reasonable in all the circumstances. Seen this way, the potential that a position may attract minimum wage, as do so many in the community filled by persons of all ages, or may be one which is not in a chosen field, are not considerations that determine whether a person is under-employed for the purposes of imputing income. 94 The Court of Appeal concluded that the trial judge’s decision not to impute any income to Mrs. Jendruck was inconsistent with s. 15.2(6)(d), and determined that it was reasonable to impute income to her of $1,000 a month. 95 The word “appropriate” is used in s. 19 of the Guidelines. The word “appropriate” is also in s. 5 (spouse in place of a parent). The words “appropriate” and “inappropriate” are used in s. 4 (incomes over $150,000). The meaning of the word “inappropriate” in s. 4 of the Guide- lines was considered extensively by the Supreme Court of Canada in Francis v. Baker, [1999] 3 S.C.R. 250 (S.C.C.) [Francis] at paras. 32 to 37. The Court determined that “inappropriate” must be broadly defined to mean “unsuitable” on a consideration of the condition, means, needs and other circumstances of the children. 96 If the ordinary meaning of the word “inappropriate” is broadly defined to mean “unsuitable”, then “appropriate” must be broadly defined to mean “suitable”. 97 Ms. A argues that parents cannot avoid child support obligations by a self-induced reduction of income. Parents are not required to work exceptional hours, but a parent who works less than a regular work week must justify that choice by the needs of the children or suffer the loss personally. Dr. D cannot effectively transfer part of the cost of that choice to his children: Barker v. Barker, 2005 BCCA 177 (B.C. C.A.) [Barker] at paras. 18 and 19: [18] Under s. 19(1)(a) of the Guidelines, the important question is whether the payor spouse has demonstrated an intention to be under- employed, with the consequence that his children do not benefit from 166 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

his potential earning capacity. This does not mean a parent must work the long hours Ms. Barker puts in to earn her significant income. It does mean that a parent who chooses to work less than a regular work week must justify that choice by the needs of the children or suffer the loss personally. He cannot effectively transfer part of the cost of that choice to his children. Those principles are evident in the language of [s. 19(1)]. [19] With deference to the view of the majority in Hunt [2001 ABCA 229], I prefer the reasoning of the trial judges of this province who have looked for guidance to this court’s early interpretation of s. 19(1)(a) in Van Gool v. Van Gool (1998), 166 D.L.R. (4th) 528, to find that the intent to evade or minimize the payment of child support is not required for a finding of intentional underemployment or unemployment, although if that intent exists that finding is required. What matters under the Guidelines is what mattered under the Di- vorce Act and the Family Relations Act before the Guidelines — whether the parent is earning what the parent is capable of earning. 98 However, I consider Barker distinguishable on its facts. Dr. Barker earned only $8,329 in 2000, $4,385 in 2001, and $25,992 in 2002. The chambers judge imputed the following income to him: $60,000 for 2000, $80,000 for 2001, and $150,000 for 2002. 99 Ms. A seeks to impute to Dr. D an annual income of $2,300,000 and on that basis, Guidelines support of $14,000 a month for DJ, who lives with her half of the time. However, as shall be discussed in detail below, the condition, means, needs and other circumstances of DJ, as well as Ms. A’s duty and RJ’s duty to support him must be taken into account in determining the appropriate support under s. 4 and s. 5. 100 Dr. D has worked exceptionally hard from the time he qualified. He was on call 365 days a year. His evidence that he likely performed four times more surgery than the average oral surgeon was not challenged. Dr. D earned an average of $34,353 in the last four months of 2014 working as an associate for Dr. E. I am not going to speculate on whether Dr. D and Dr. E will go their separate ways. For now, Dr. D’s projected earnings based on his past earnings with Dr. E are in the range of $400,000 annually. I am not satisfied that the reasonable needs of DJ and ML have suffered, or will suffer as a result of Dr. D’s choice to sell his practice and work less. I do not consider it appropriate to impute income to Dr. D. D. (D.M.) v. D. (R.L.) Loo J. 167

Education, Experience, and Other Circumstances of Ms. A 101 Ms. A’s line 150 income from 2002 to 2013 is as follows: 2002 $22,248 2003 $41,732 2004 $116,932 2005 $144,912.40 2006 $138,920.47 2007 $127,709.83 2008 $666,062.46 2009 $2,403,422.56 2010 $16,265 2011 $7,413 2012 $157,258 ($150,000 spousal support) 2013 $198,444 102 At the time of trial Ms. A was unable to produce a copy of her 2014 return. However, that year, Dr. D paid her $180,000 in spousal support, $52,500 in child support, and Ms. A anticipates approximately $60,000 in investment income. I think it is fair to conclude that Ms. A’s income for 2014 would be in the range of $200,000 or more. 103 Ms. A was born and raised in Winnipeg, where she attended high school. Following graduation she attended college for two years and obtained a diploma in business administration. She moved to British Co- lumbia in 1990. A couple of years later, she attended the University Col- lege of the Fraser Valley and in 1994 obtained her dental assistant certificate and became a CDA. She married RJ (who is also from Winni- peg) on July 31, 1994. From 1994 until 1997 she worked as a CDA in a general dental practice. She began working for Dr. D in his surgery office and at the hospitals until she went on maternity leave for the birth of DJ. She returned to work for Dr. D and continued working for him until June 2001, a month before ML’s birth. 104 During the nine years that the parties were together, Ms. A helped out in Dr. D’s office not more than 10 occasions. Other than that, Ms. A has not worked outside of the home. However, when the parties were together until they separated she took steps to ensure that her CDA requirements were up to date. 105 Ms. A testified that she is no longer qualified as a CDA. When asked when she ceased being qualified, she said that it is “a little hard” for her 168 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

“to give an exact date”. From June 2001 when she stopped working until separation in July 2010, she renewed her CDA license each year, paid the annual professional dues, and obtained her required 36 continuing education credits on a three-year cycle. 106 She testified that when the March 2011 renewal date came up, the College of Dental Surgeons, the regulating body for CDAs, changed the renewal requirement. In addition to 36 hours of continuing education credits, she required some 600 hours of work in the field, but because she has not worked in a dental office for the last nine or ten years, she did not meet the requirements and had to change the status of her CDA license to a non-practising license. This means that she is not allowed to work in dental office until she meets the requirements. She testified that she learned about the changed requirements from correspondence she received from the College — but did not produce — reminding her that her CDA renewal was coming due. She phoned the College of Dental Sur- geons, and spoke to someone, whose name she cannot recall, but the person is in charge of license renewal. This person told her that she could either firstly, retake the course to obtain her certification; secondly, write the national board exams and obtain her certification; or thirdly, find a dentist who would mentor her to get her skill level back to where it should be. 107 The evidence relating to what the person in charge of license renewal told Ms. A is hearsay. None of what Ms. A said about the new CDA requirements was put to Dr. D or Ms. Forsythe in cross-examination, although they both testified about CDA qualifications. 108 Whatever the requirements may be, Ms. A has made no attempt to work as a CDA. She has continued to pay her annual CDA professional dues but does not want to work as a CDA. 109 Ms. A testified that she does not want to work as a CDA because of “the toxicity” of her divorce from Dr. D and it is better for her to stay out of the dental field because it is a “tight community”. She says that it is better for her health and well-being to walk away from the dental field as far as she can. She wants to take a different path and work at something that she is passionate about and enjoys doing, and that will enable her to support herself and the children. She says that she does not want to do something just because she needs to return to work. 110 However, when asked what other areas of work she has looked into, Ms. A replied “nothing specific”. She attended the University College of the Fraser Valley and completed an interest assessment questionnaire, D. (D.M.) v. D. (R.L.) Loo J. 169

but is still trying to figure out what areas her “interests or passion” might be. She also attended a session at WorkBC on how to look for a job and prepare a resume. She has not looked for work or applied for any work. She says that the court proceedings have been a full-time job. If she had a job, she could not take the time off work to attend court, and she is not mentally able to dedicate herself to taking any course. She blames Dr. D for the fact that she has not taken any steps towards looking for employment or another career path. She blames him for stealing and kidnapping ML from her, and she claims that his treatment of her has been tortuous, toxic, and abusive.

Analysis and Conclusion on Imputing Income to Ms. A 111 Ms. A. argues that the court should take into account the emotional impact of the separation and Dr. D’s conduct in assessing her ability to become and remain self-sufficient. She argues that medical evidence is not necessary: Leskun v. Leskun, 2006 SCC 25 (S.C.C.) [Leskun] at paras. 20 to 28. 112 Both parties have made negative remarks about each other, and I do not find it helpful to review who said what to who, or why. The issue comes down to whether Ms. A is able to rely on the emotional consequences of Dr. D’s conduct as the cause of her inability to take any steps towards economic self-sufficiency. I think not. 113 In my view Leskun stands for the proposition that a court cannot consider a former spouse’s misconduct alone as impacting the other spouse’s ability to become and remain reasonably self-sufficient. In that case, Mrs. Leskun had a myriad of other problems, including medical and family problems. Binnie J. for the Supreme Court of Canada stated: 20 I believe that stripped of the rhetoric, the appellant has a valid point of statutory interpretation. Prior to the 1985 Act, s. 11 of the Divorce Act, S.C. 1967-68, c. 24, directed the court to have “regard to the conduct of the parties and the condition, means and other circumstances of each of them” in exercising its discretion in making an award of spousal support. The 1985 Act sought to eliminate misconduct, as such, as a relevant consideration. Section 15.2(5) of the Di- vorce Act now provides that in making an interim or final order for spousal support, “the court shall not take into consideration any misconduct of a spouse in relation to the marriage”. In addition, s. 17(6) of the Divorce Act instructs the court not to consider any conduct in a variation application that could not be considered in the making of the initial order. These provisions make it clear that misconduct 170 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

should not creep back into the court’s deliberation as a relevant “condition” or “other circumstance” which the court is to consider in making or varying a spousal support order (s. 15.2(4)). Misconduct, as such, is off the table as a relevant consideration. 21 There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself. The consequences are not rendered irrelevant because of their genesis in the other spouse’s misconduct. If, for example, spousal abuse triggered a depression so serious as to make a claimant spouse unemployable, the consequences of the misconduct would be highly relevant (as here) to the factors which must be considered in determining the right to support, its duration and its amount. The policy of the 1985 Act however, is to focus on the consequences of the spousal misconduct not the attribution of fault. 22 Section 15.2(4) states that in making a spousal support order the court shall take into consideration the condition, means, needs and other circumstances of each spouse, ... Certainly, the “condition ... needs and other circumstances” includes the capacity of the respondent to be self-sufficient for whatever reason. Whether or not the claimed inability or incapacity of the claimant spouse is credible is for the trial judge to determine. It is not helpful to cast about to assign blame. 23 ... Parliament has concluded that the attempt to get to the bottom of all the rights and wrongs that contributed to the break-up is likely impossible and in any event irrelevant to the task of sorting out the financial consequences. ... As to the “legal tsunami”, I agree with the amicus curiae that for the most part parties will realize “that the only way out [of the financial difficulties consequent on the break-up] is if they pull themselves up by their own bootstraps”. 24 If the misconduct point were to be viewed in isolation, the appellant is correct, but the point cannot be viewed in isolation. The fact is that both the Chambers judge and Newbury J.A., who differed from her colleagues on the relevance of the misconduct, cited numerous other factors (also referenced by the majority judgment) to reject the appellant’s attempt to extricate himself from any further financial responsibility for his former wife. [Underline emphasis in Leskun.] 114 Ms. Forsythe testified that a CDA could earn $27 an hour, and based on a 37 hour week, $52,000 annually. With overtime and bonuses, the annual salary increases to between $55,000 and $60,000. D. (D.M.) v. D. (R.L.) Loo J. 171

115 Dr. D contends that the court should impute employment income to Ms. A in the range of $55,000 to $60,000 annually. Ms. A’s Guidelines income for 2013 should be $90,000, and for 2014 and 2015 at $120,000 a year, or an average for 2013 to 2015 at $110,000, including employment and investment income. 116 Ms. A argues that should the court decide to impute employment income to her, she should be imputed an income of $25,000 a year commencing in 2015 as she is no longer qualified to work as a CDA. An income of $25,000 a year is equivalent to full-time employment at an hourly rate of the current minimum wage of approximately $13 an hour. She is now 46 years old and has not been employed outside of the home for the past 14 years. Her only other postsecondary education was a diploma in business administration which she obtained before 1989. Her income from 2014 should be $60,000 a year, representing only her investment income. Her income from 2015 going forward should be $85,000 representing investment income of $60,000 and $25,000 in employment income. 117 Ms. A was 41 years old on separation. With the exception of 10 or so days, she had not worked as a CDA for nine years. In the nearly five years since separation, Ms. A has made no reasonable effort towards economic self-sufficiency by seeking employment or retraining. The litigation has no doubt been emotionally draining at times, but she cannot wholly blame Dr. D for her failure to find employment or retrain. Half of the time she has not had the children or any child with her, and there is no suggestion that the children are so young that she needs to remain at home. She is capable of more than minimum wage employment. She may only want to work at something she is passionate about and enjoys doing, but that does not relieve her of her legal obligation. Ms. A has a legal obligation to take steps to find employment based on her age, health, education, and prior work history: Yeung v. Silva, 2014 BCSC 2436 (B.C. S.C.) at paras. 24 and 25. Apart from her complaints that she no longer lives the lavish style she had before the parties separated, Ms. A lives in the former matrimonial home and has been able to support herself and the children, save money, and not go into debt. Perhaps from a practical point of view, she is not economically required to work. But that is not the test. I find that Ms. A is intentionally unemployed. 118 I conclude that an annual employment income of $25,000 should be imputed to Ms. A from July 2013, plus $15,000 in investment income, for a total imputed income for 2013 of $27,500 ($12,500 employment 172 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

income plus $15,000 investment income). For 2014, her investment income is $60,000 annually, so that for 2014 her total imputed income is $85,000 ($25,000 + $60,000). 119 By 2015, Ms. A ought to have returned to working as a CDA, re- trained, or obtain other employment. Her income for employment purpose should be imputed at $55,000. From January 2015 going forward, the annual income imputed to Ms. A is $115,000 ($55,000 + $60,000). 120 Dr. D also contends that Ms. A has failed to invest her monies properly. As of July 2013 she had cash accounts totalling over $2,110,000, including the $1,700,000 compensation she received that month. Of that amount, she kept $527,000 in a chequing account, and did not know if she earned any interest on that amount. Dr. D asks the court to conclude that she could earn not less than three percent on her cash under investments. However, he also argues that she should earn roughly $60,000 in investment income. 121 Ms. A has a financial advisor. She testified that her risk tolerance is low. For 2014 she expects that her investment return will be $60,000 — which is what Dr. D says her investment return should be. I therefore do not propose to impute income to Ms. A pursuant to s. 19(1)(e) of the Guidelines.

D. Child Support Generally 122 The issues relating to child support involve not only the presumptive child support provisions of s. 3 of the Guidelines, but also section 4 (income over $150,000), section 5 (spouse in place of a parent), and s. 19 (imputing income). 123 Section 3 provides: Presumptive rule 3. (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is (a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and (b) the amount, if any, determined under section 7. D. (D.M.) v. D. (R.L.) Loo J. 173

124 Section 4 provides: Incomes over $150,000 4. Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is (a) the amount determined under section 3; or (b) if the court considers that amount to be inappropriate, (i) in respect of the first $150,000 of the spouse’s income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates; (ii) in respect of the balance of the spouse’s income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and (iii) the amount, if any, determined under section 7. 125 The principles governing s. 4 of the Guidelines were summarized by the Court of Appeal in H. (J.E.) v. H. (P.L.), 2014 BCCA 310 (B.C. C.A.) at paras. 28 and 29: [28] The leading authority on the principles governing a judge’s discretion under s. 4 of the FCSG is Francis v. Baker, [1999] 3 S.C.R. 250. Madam Justice Newbury provided a concise summary of these principles in Metzner v. Metzner, 2000 BCCA 474 at para. 30: 1) It was Parliament’s intention that there be a presumption in favour of the Table amounts in all cases (para.42); 2) The Guidelines figures can only be increased or reduced under s. 4 if the party seeking such a deviation has rebutted the presumption that the applicable Table amount is appropriate (para.42); 3) There must be clear and compelling evidence for departing from the Guidelines figures (para.43); 4) Parliament expressly listed in s. 4(b)(ii) the factors relevant to determining both appropriateness and inappropriateness of the Table amounts or any deviation therefrom (para.44); 5) Courts should determine Table amounts to be inappropriate and so create more suitable awards only after 174 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

examining all circumstances including the factors expressly set out in s. 4(b)(ii) (para.44); 6) Section 4(b)(ii) emphasizes the “centrality” of the actual situation of the children. The actual circumstances of the children are at least as important as any single element of the legislative purpose underlying the section (para.39). A proper construction of s. 4 requires that the objectives of predictability, consistency and efficiency on the one hand, be balanced with those of fairness, flexibility and recognition of the actual “condition, means, needs and other circumstances of the children” on the other. (para.40) 7) While child support payments unquestionably result in some kind of wealth transfer to the children which results in an indirect benefit to the non-paying parent, the objectives of child support payments must be kept in mind. The Guidelines have not displaced the Di- vorce Act which has as its objective the maintenance of children rather than household equalization or spousal support (para.41). 8) The court must have all necessary information before it in order to determine inappropriateness under s. 4. If the evidence provided is a child expense budget, then “the unique economic situation of high income earners” must be considered. 9) The test for reasonableness of expenses will be a dem- onstration by the paying parent that the budgeted expense is so high “as to exceed the generous ambit within which reasonable disagreement is possible”: Bellenden v. Satterthwaite, [1948] 1 All E.R. 343 at 345. [29] I would add to this list the comment from Hollenbach v. Hol- lenbach, 2000 BCCA 620at para. 45, in which this Court interpreted Francis as creating a “formidable onus” for wealthy payors seeking to establish that the FCSG amount is inappropriate. 126 In Hollenbach v. Hollenbach, 2000 BCCA 620 (B.C. C.A.) [Hol- lenbach], the father’s income was $711,544. The trial judge held that the table amount was inappropriate because it exceeded the children’s needs. The Court of Appeal overturned the decision holding that there was a presumption in favour of the table amount and the father had failed to D. (D.M.) v. D. (R.L.) Loo J. 175

rebut that presumption. The Court of Appeal further clarified the approach to s. 4: (a) Determining the standard of living of the children during the marriage is a threshold issue. It must be done prior to determining the appropriate amount of support (para. 35). (b) The “unique economic situation of high income earners must be acknowledged” at the threshold stage and the level of expenses which would support the table amount must be unarguably excessive (para. 37). (c) The burden is on the payor to demonstrate that the table amount could not have been useful to the children having regard to the standard of living of other children of very wealthy parents (para. 38). (d) The court must look to the standard of living during the marriage. It is an error to approach the question from the standard of living which stayed within the means of a prior support order which is below the Guidelines (para. 39). (e) Budgets are imprecise. They are helpful but not determinative. A budget that does not attempt to meet the table amount should not be held against the children, particularly where they represent what the recipient can afford on a previous order not made in accordance with the Guidelines (para. 42). (f) The threshold enquiry on appropriateness, it is not for the receiving spouse to justify the table amount by the presentation of a per- suasive budget; rather the onus is on the payor to demonstrate that the amount is inappropriate on clear and compelling evidence (para. 44). 127 The Court of Appeal ultimately held at paras. 45 and 46 that the onus to prove that the Guidelines amount in inappropriate is very high, stating that it is “almost impossible”. 128 Section 5 of the Guidelines provides: Spouse in place of a parent 5. Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child. 176 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

129 The principles governing s. 5 of the Guidelines were considered by the Court of Appeal in H. (U.V.) v. H. (M.W.), 2008 BCCA 177 (B.C. C.A.) [H. (U.V.)]. At para. 29, Newbury J.A. stated: [29] Section 5 is clearly one of the exceptions to the presumptive rule, importing a discretion to determine what is “appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child.” (As to the meaning of the word “appropriate”, see the discussion of “inappropriate” in Francis v. Baker, [1999] 3 S.C.R. 250, 50 R.F.L. (4th) 228, at paras. 32-41.) 130 In reconciling Chartier v. Chartier, [1999] 1 S.C.R. 242 (S.C.C.) [Chartier], with subsequent British Columbia case law, Newbury J.A. stated that nothing in Chartier precludes the court from finding that it is appropriate not to order any amount of child support under s. 5 of the Guidelines. She concluded: [40] ...Thus a “fair standard of support”, objectivity of calculation, and reduction of conflict between parents are relevant to the determination of “appropriate” support by the stepparent. On the other hand, s. 5 does not, in my view, confer a discretion that is so broad as to encompass “all” the circumstances of a case (as was suggested in Russenberger) or “fairness” to the father arising from a kind of promissory estoppel against the stepparent (as was suggested by the chambers judge in this case). [41] Given the “children-first” perspective of the Guidelines (see D.B.S., supra, at para. 43), primacy should be given to the children’s standard of living. Where for example the stepparent provided a standard to the children during the period of cohabitation that was mate- rially higher than that which the natural parents can provide by means of their Guidelines amounts, a court might find it appropriate to make an order against the stepparent that is designed to provide the higher standard, or something approximating it, “on top of” the other parents’ support. However, where the ‘piling’ of Guidelines amounts would result in a standard beyond one that is reasonable in the context of the standard the children have previously enjoyed, such a ‘windfall’ or “wealth transfer” (see Francis v. Baker, supra, at para. 41) is unlikely to be “appropriate”. 131 Section 9 of the Guidelines provides: Shared custody 9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account D. (D.M.) v. D. (R.L.) Loo J. 177

(a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

The Condition, Means, Needs, and Other Circumstances of the Children 132 Under s. 5 of the Guidelines, the amount of the child support that Dr. D is required to pay to Ms. A for DJ is such amount as the court considers appropriate, having regard to the Guidelines and the legal duty of Ms. A and RJ to support DJ. Because Dr. D’s income is over $150,000, s. 4 of the Guidelines dictates that I must also consider the condition, means, needs, and other circumstances of the children as well as the financial ability of each party to contribute towards their support. 133 RJ testified as part of Dr. D’s case.

DJ 134 RJ and Ms. A married in July 1994, and separated in September 1999 when DJ was nine months old. They divorced in July 2001 and have joint custody and equally shared parenting time of DJ. DJ has been an important part of RJ’s life. 135 RJ began working in the financial investment business in January 1997. He obtained his certified financial planner designation in 2000. He also has a level 2 life insurance license, and a Canadian securities license. At the time he testified in August 2014, he was working towards his retirement planning specialist designation. 136 The property where RJ resides — and where DJ resides when he is living with him — is in Abbotsford and valued at $525,000. 137 RJ has paid child support to Ms. A since at least 2000. The most recent order was based on RJ’s annual income of $84,604. At the time of the order Ms. A’s income was $198,444, and she was ordered to pay to RJ the difference of their respective spousal support obligations, or a set- off of $892 per month. 138 RJ testified that Ms. A told him when DJ was in grade 3 or 4 that she and Dr. D wanted DJ to attend private school. RJ said that DJ’s school in Abbotsford appeared to be fine, he had his reservations, but at the end of the day, there was not a whole lot he could say about it. On the agree- 178 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

ment that Ms. A and Dr. D would pay the cost of the private school, he agreed to let DJ attend. 139 DJ has been attending public school instead of private school since September 2013. RJ testified that the reason DJ started attending public school related to “a few things that started to add up”. He noticed that his son had no close friends living nearby. He also noticed that his wife’s daughter, who was attending public school, was taking classes, such as woodworking, that were not offered at the private school. There was also no course at the private school that DJ excelled in or was passionate about, and several of his classmates had left the private school for public school. In late 2011, he told DJ that if he wanted to attend a different school, he would support him. They visited a number of public schools before DJ decided to leave private school. 140 DJ is doing well in public school, and has received A’s in all of his courses except mathematics and English, where he received B’s. He is taking woodworking, computer animation, and another computer course. He plans on taking drafting, design, technology, outdoor education, as well as mathematics and sciences, or the pre-requisite university courses. He now has a lot more friends than he did when he attended private school. He has his beginner’s driver’s license. 141 For the last year or more DJ has been working part-time job in a well- known restaurant chain. He works about eight to 15 hours a week, depending on the availability of work. Ms. A testified that with the money he has earned, DJ has purchased a few clothing items for himself, a stereo that he leaves at RJ’s house, and another mountain bike, or he contributed to the cost of the mountain bike — Ms. A’s evidence on this point was not clear. 142 DJ has no scheduled extracurricular activities, but enjoys mountain biking, computer gaming, and quarter midget racing. DJ took up mountain biking when he started public school, and he goes mountain biking with his friends. He is not engaged in competitive mountain biking. In early 2013 DJ purchased his own quad or all-terrain vehicle. He has participated in quarter midget racing (high speed go kart racing) since he was seven years old. RJ has wholly paid for the cost, and never asked Ms. A to contribute. 143 Ms. A testified that DJ used to be in Scouts, and both he and ML went swimming and skating at the community centre. She does not recall the cost of those activities, so the cost of those activities must not have been significant. D. (D.M.) v. D. (R.L.) Loo J. 179

144 Neither RJ nor Ms. A claim special or extraordinary expenses for DJ. He appears to have none. The only expense that they have ever shared was DJ’s braces that were approximately $4,200. They shared the cost equally. 145 RJ testified that when DJ was in private school, he wore a uniform and dress shoes, so he bought him a couple of pairs of pants and shirts, and a pair of shoes every couple of years or so. 146 Ms. A testified that since DJ is no longer in private school, he needs “regular clothes”, but she cannot afford to buy him the designer brands of clothing that he wants. She also cannot afford to buy him the kind of mountain bike that he wants because they cost between $8,000 and $12,000. DJ likes computers and gaming, but wants audio-video equipment that costs $3,000, speakers that cost $700, and a computer that costs $2,000. These items are “just not doable for me” without child support, or increased child support from Dr. D. 147 RJ was never asked in cross-examination whether DJ was in reasonable need of an $8,000 to $12,000 mountain bike, designer clothing, or the expensive electronic equipment that Ms. A says DJ wants. 148 Ms. A complains that without increased child support she can no longer afford to take DJ on the number of luxury vacations that they enjoyed when she was with Dr. D. Ms. A testified that they spent most of the summers and many weekends in their home in Kelowna, they travelled five to six times a year, including “big trips” during spring break to Hawaii, Mexico, and a Disneyland cruise. They took trips during Christ- mas breaks and other school holidays, they went to Seattle, to New York a couple of times, and spent days and sometimes the weekend in Van- couver at the Fairmont or Sutton Place hotel. When they travelled, they generally stayed in five star hotels — not standard rooms — but often suites with extra concierge services. She no longer takes DJ to Vancou- ver to stay in five star hotels, eat in fine or high end restaurants, or buys him the gifts and clothes that he wants. 149 However, since separation and until July 2013, Ms. A took DJ and ML to Mexico and Hawaii. She had also planned to take them on a trip to Spain, but that never happened, because the parties argued over the wisdom of the trip, and whether ML was too ill or not to travel. 150 Ms. A did not testify about where she has taken DJ on vacation since July 2013, or where she plans to take him, or where he would like to go. 180 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

151 Ms. A argues that the parties’ former “lavish lifestyle” must be taken into account when considering the amount of child support she should receive. 152 Ms. A gave little or no evidence relating to the needs of ML.

ML 153 Dr. D testified that ML is highly intelligent and doing very well at private school. School is very demanding and allows her little time for many extracurricular activities. However, she has taken skating lessons, dance classes, art classes, guitar lessons, and ukulele lesson. She also spends times with friends after school, and goes for sleepovers at her friends’ house or her friends go on sleepovers at their house. 154 Dr. D says that he and ML do many things together, including Lego, puzzles, reading, listening to music, watching movies, and going to art museums. They enjoy exploring languages, getting dinner at Subway on their way to Kelowna, and going to Starbucks on their way back from Kelowna. Following separation, Dr. D purchased a smaller home in Kelowna, and he and ML bring friends to Kelowna for the weekends. 155 When ML was spending time with Ms. A, according to Dr. D, based on what ML told him — ML and her mother have played board games and cards, and on three occasions they went to ceramics in Chilliwack. ML also swam in the pool at Ms. A’s house, but Dr. D said that most of the time ML swam alone, sometimes she had friends over, but most of the time when she was at Ms. A’s she spent time alone in her room reading and playing with Rodeo, the yellow Labrador. 156 As I mentioned, Ms. A gave little or no evidence about ML’s needs or how she spent her time when she was with her, but she did not contradict Dr. D’s evidence on this point. However, she said that if the children wanted to participate in an activity, cost was never a factor. 157 ML has no special expenses — or at least, none are claimed by either party. It appears that all of her activities are paid for by Dr. D, and when she was with Ms. A, she was engaged in few, if any, activities.

Other Circumstances 158 Other circumstance that I consider relevant is the relationship between Dr. D and DJ. 159 I will at this point comment on my observation of RJ. He thought carefully before he spoke, and he spoke slowly and deliberately. He D. (D.M.) v. D. (R.L.) Loo J. 181

seems to have insight into people and relationships. He candidly stated that he is no fan or friend of Dr. D. They have a 15 year history which is understandably not a good one, but they have reached a point where they are able communicate on matters concerning DJ, and on occasion, be in each other’s company. RJ’s evidence was not challenged by either party. I find him to be a very credible witness. 160 Dr. D testified that Ms. A would not allow him to see DJ, and DJ so much as told him so. Ms. A says that she leaves it up to DJ and Dr. D whether they see each other or not, and she has never stopped DJ from seeing Dr. D. However, RJ testified that DJ told him that he was not allowed to see Dr. D because Dr. D was mean and a liar. On more than one occasion, DJ has told him and his wife that he is not allowed (by Ms. A) to see or talk to Dr. D. 161 RJ testified that following the parties’ separation, Dr. D phoned him to find out when DJ was with him so that he could arrange the access schedule, so that ML and DJ would be with Ms. A at the same time. Dr. D wanted to know if he would allow him to see or talk to DJ. He told him that he would ask DJ. DJ told him that he wanted to see and talk to Dr. D. As a result, he told DJ that he could talk to Dr. D whenever he wanted to, and he could see him if he wanted to. It was up to him. 162 RJ testified that Dr. D arranged with him to see DJ at Christmas for a couple of years, because Ms. A would not allow it. Dr. D took DJ out for his birthday in 2012 and 2013 when they had dinner at Red Robin. In the spring or summer of 2013 he and DJ went quading with Dr. D. DJ also went quading with Dr. D in the spring of 2014. Those are the only times that he recalls that Dr. D has seen DJ, apart from when DJ was attending private school and he would see Dr. D at the bus stop when Dr. D was there to pick up ML. Otherwise, Dr. D and DJ do not see each other very much, if at all. However, they text each other from time to time. He is fine with that. He knows that because DJ tells him, and shows him the text messages on his cell phone. 163 I do not intend to detail the incident which RJ relayed where Ms. A went out of her way to see that DJ would not have contact with Dr. D when the private school bus broke down. The evidence satisfies me that Ms. A has discouraged any relationship between Dr. D and DJ. It is not for lack of trying on Dr. D’s part. 182 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

Argument of Dr. D 164 Ms. A swore four financial statements in these proceedings: Novem- ber 23, 2011, May 6, 2013, September 5, 2014 and January 20, 2015. She also swore a financial statement on February 20, 2014 in RJ’s family proceedings against her. 165 Dr. D argues that Ms. A has vastly overstated the expenses on her financial statements, and a review of her bank statements up to 2012 demonstrates that all of her expenses have been more than adequately met even when Dr. D was paying only $8,000 a month in support, because her savings increased substantially. 166 In her November 23, 2011 statement Ms. A claimed monthly expenses of $24,023, including monthly travel expenses of $4,000, for total annual expenses of $288,276. Ms. A testified that she calculated those expenses by reviewing receipts, invoices, credit card statements, personal bank accounts (the parties’ joint bank account statements from December 31, 2008 to September 30, 2010), and through her recollection, to assist in categorizing how money was spent. She testified that her financial statement represented the expenses for the family during her relationship with Dr. D and that it is an accurate picture of the lifestyle she had when they were together. She used the same method to determine her expenses for her remaining financial statements. She uses only her Envision bank account to pay for all of her expenses, including her credit card and cash draws, and never used her investment account to pay for any expenses. All of Dr. D’s support payments were deposited into her Envision account, which she had before separation. As of August 31, 2010 before she started using that account for all of her expenses, the account balance was $17,878. 167 Ms. A included in her 2011 financial statement, amounts that were wholly paid by Dr. D: $1,678 for property taxes, $1,678 for insurance, $2,700 for school fees (she testified that she paid $200 out of the $2,700 each month), and $2,000 for trust fund payments for both children. Ms. A said that she included the $2,000 a month on her list of expenses, even though she did not know whether Dr. D continued to contribute to ML’s trust fund, but she no longer contributed towards DJ’s trust fund. 168 Dr. D argues that Ms. A could more than afford to pay all of her remaining expenses based on a support payment of $8,000 a month. De- ducting the amounts paid by Dr. D noted in the paragraph above ($2,000, $1,678, and $2,700 each month) from her monthly expense of $24,023, D. (D.M.) v. D. (R.L.) Loo J. 183

Ms. A has monthly expense of $17,645 or $211,000 annually, which is far in excess of what her bank account discloses that she spends. 169 A review of her bank statements (there were no cancelled cheques) disclose that her average monthly expenses for 2011 was only $8,000 a month compared to the $24,023 monthly expense claimed on her 2011 financial statement. Ms. A’s Envision bank balance increased by the end of 2011 from $56,162 to $130,705. 170 Ms. A’s financial statement of May 6, 2013 claims monthly expenses of $21,987, or annual expenses of $263,844. This includes $2,000 a month for the children’s trust funds (which she testified was not being paid by her), $650 towards her registered retirement savings plan (RRSP), an additional $417 to a registered education savings plan (RESP), and $833 to a tax free savings account (TFSA). However her bank account discloses average monthly expenses of $13,233.16 or $158,798 annually. By the end of 2012, her Envision bank balance had increased by $187,286 to $319,120. 171 Ms. A’s bank statements for 2013 or 2014 were not before the court. 172 Ms. A’s financial statements of September 5, 2014 and January 20, 2015 are similar. The September 5, 2014 financial statement claims $19,324 in monthly expenses, or total annual expenses of $231,888. The January 20, 2015 financial statement claims monthly expenses of $19,399, or total annual expenses of $232,788. The difference is ac- counted for by a $25 monthly increase in property taxes, and a $50 increase for car insurance and license. Her expense for vacations is reduced from $4,100 a month to $800 a month, but Ms. A now claims that she is contributing $2,812 towards her savings, comprised of $1,980 to her RRSP, $416 to her TFSA, and $416 to an RESP. 173 Ms. A states in her affidavit to both the 2014 and 2015 financial statements that she is paying significant legal fees which she anticipates will affect her capital assets, her expenses do not include any expenses relating to ML, except for anticipated counselling of $300 a month, and gifts of $100 a month. Her expenses for DJ are $665, made up of the following:

1. Clothing $350 2. Hair care $25 3. School fees and supplies $10 4. Entertainment/recreation $300 184 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

5. Activities and lessons $0 Total $685 174 Ms. A deposes that the expenses listed in her 2014 and 2015 financial statements “reflect what I am currently able to afford. I am not able to pay for vacations, meals outside the home, clothing, gifts and certain expenses for my home which I was able to afford prior to separation. My lifestyle and that of [DJ] when he is in my care does not accord with our lifestyle prior to separation”. 175 Dr. D argues that the statement is at best odd because the financial statements include amounts for vacations, meals outside the home, clothing, and gifts. When they were together they were never extravagant with gifts for the children because Ms. A was opposed to expensive gifts or spoiling them. Ms. A claims that her expenses are $231,888, but her income is $189,566 (support payment and investment income) which means her expenses exceed her income by $42,322. By implication it means she should be in debt, but Ms. A has neither secured or unsecured debt. She produced no statements indicating that she was using any capital from her investments to fund any of her expenses. 176 In the financial statement Ms. A swore on February 20, 2014, in her family law proceeding with RJ, Ms. A claimed legal fees of $33,400 a month, ($400,800 annually). Many of the amounts Ms. A claims for expenses in her February 20, 2014 financial statement are lower than what she claims in her May 6, 2013 financial statement in this proceeding. Her monthly housing expenses are $2,758 in this proceeding but only $1,930 in the other proceeding. Her monthly household expenses are $1,900 in this proceeding but only $850 in the other proceeding. 177 Dr. D contends that Ms. A exaggerates her expenses out of a belief that it will assist her claim for additional child support. He argues that DJ has not been impacted by the parties’ separation for the following reasons: 1. DJ continues to live in a week on week off arrangement with Ms. A, and when he is with Ms. A, he continues to live in the same house that the parties lived in when they were together. It is a luxury home, with a swimming pool and an agreed value of $1,475,000; 2. DJ continues to have available to him for his education or other uses, $163,000 (as of June 2013) in trust funds; D. (D.M.) v. D. (R.L.) Loo J. 185

3. All of DJ’s expenses are met by Ms. A and RJ. 178 Accordingly, Dr. D contends that there is no compelling evidence that Ms. A should receive basic child support for DJ after July 2013. He would receive no benefit from it. It would be akin to Ms. A receiving non-taxable spousal support. 179 Dr. D. seeks a declaration or order as follows: 1. He has fully met his obligation to Ms. A for the payment of basic child support and special expenses for the benefit of ML; 2. He has fully met his obligation to Ms. A for the payment of basic child support and special expenses for the benefit of DJ; 3. He has no further child support obligations for basic child support or for special expenses for DJ from and after July 1, 2013; 4. Ms. A. pay to him as over-payments by him for basic child support for ML and DJ totalling $212,500 as follows: a. an over-payment of $5,000 each month from February 2012 to the end of June 2013, or $85,000; b. an over-payment of $15,000 each month from July 2013 to the end of November 2013, or $75,000; and c. an over-payment of $7,500 a month from December 2013 to the end of June 2014, or $52,500.

Argument of Ms. A 180 Ms. A argues that Dr. D has failed to meet the formidable onus to demonstrate that the table amount of support is inappropriate. He gave almost no evidence in direct examination relating to the lifestyle the parties and the children enjoyed before separation, or their expenses, yet conceded that he purchased expensive vehicles, properties, took vacations, and lived a lavish lifestyle. Therefore the table amount of support applies, taking into account, the payments Dr. D made towards the home from separation in July 2010 until the property settlement in July 2013, and the supports obligations of RJ to DJ. 186 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

181 The table amount of support payable by Dr. D to Ms. A in each year should be as follows: Period Table Children Support (Monthly) 2010 $39,003 Two children 2011 $34,013 Two children 2012 $29,597 Two children 2013 (January-July) $32,024 Two children 2013 (August-December) $18,895 One child (offset) 2014 $23,065 One child (offset) Ongoing $16,440 One child (offset) 182 Ms. A argues she cannot maintain the standard of living the children enjoyed during the marriage based on the amount of child support she receives. She has reduced her expenses for maintaining the home, vacations, gifts for DJ, and discretionary expenses for him. She never spent the entire amount of support she received because she is saving money for taxes and legal fees, and is uncertain about the outcome of the trial. 183 The total budget set out in Ms. A’s November 2011 financial statement included the private school tuition ($2,700 a month) Dr. D paid, but does not include payment of taxes, capital or discretionary expenses, such as the purchase of vehicles or recreational properties, and many of the expenses were only estimates. Considering the comments of the Court of Appeal in Metzner and Hollenbach that budgets are imprecise, Ms. A argues that her budget is only a minimum. The parties spent significant funds on recreational properties and expensive vehicles, spending at least $100,000 each year on vehicles alone. The court should conclude that a reasonable budget for Ms. A is $320,000 a year. 184 From separation in July 2010 until the property and spousal support settlement in July 2013, Dr. D paid certain expenses for the home which should be taken into account, as should the child support payments from RJ to Ms. A for DJ. The appropriate amount of child support should be $20,000 a month ($240,000 annually) from separation in July 2010 to July 2013 when both children were living with her half of the time. 185 By August 2013, ML was living with Dr. D full-time, Ms. A was paying the expenses for her home in accordance with the property settlement order, and DJ stopped attending private school. Taking into account that Ms. A has an obligation to pay child support to Dr. D for ML, and D. (D.M.) v. D. (R.L.) Loo J. 187

the s. 8 set off, the table amount of child support payable by Dr. D to Ms. A for DJ should be: 1. August to December 2013 $18,895 2. 2014 $23,065 3. 2015 going forward $16,440 186 Taking a “holistic approach”, the child support payable by Dr. D between August 2013 and December 2014 should be fixed at $16,000 a month, and going forward should be fixed at $14,000 a month. In arriv- ing at the figure of $14,000 a month, the following obligations of RJ are deducted: 1. RJ’s Guidelines income is $79,692 before adjustments, and results in a table amount of support of $748. 2. Ms. A’s Guidelines income (not inclusive of spousal support) has not exceeded $9000 per year from separation until 2013, resulting in no table amount of support. 3. Ms. A’s income of $60,000 in 2014 creates a table amount of support of $556 per month. 4. The combined table amount of support for both RJ and Ms. A in 2014 was $1304 per month ($748 + $556). This amount is deducted based on the standard of living. 5. Ms. A’s current income of $85,000 creates a table amount of support of $793. 6. The combined support obligation of RJ and Ms. A is $1541 per month on a going forward basis ($748 + $793). This amount is deducted based on the standard of living. 187 The appropriate amounts of child support payable by Dr. D is as follows: 1. $20,000 per month, being a rough approximation of the table amount less expenses paid by Dr. D for the home during the relevant period and the obligation of the biological parents Ms. A and RJ to support DJ, payable by Dr. D to Ms. A for both children for those months when ML resided with the parties on an equally shared basis (July 2010 to July 2013); 2. $16,000 per month, payable by Dr. D to Ms. A as “set off” table amount of child support from August 2013 to December 2014, adjusted for the obligation of the biological parents to support DJ; 188 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

3. $14,000 per month, payable by Dr. D to Ms. A as “set off” table amount of child support adjusted for the obligation of the biological parents to support DJ from January 1, 2015 until he turns 19 years of age on July 11, 2020. 188 Ms. A concludes that based on the foregoing calculations, Dr. D has underpaid child support by $472,000.

Analysis and Conclusion on Child Support 189 Each party approached the issues from different vantage points, but fails to take into account all of the applicable principles that should be considered when determining the amount of child support under ss. 4 and 5. Dr. D’s argument focused largely on Ms. A’s budgets and that the amount of support she received greatly exceeded her budget and the amounts she actually spent, as demonstrated by significant amounts she has been able to save. Ms. A’s argument focused on the table amount of support on the basis that Dr. D has failed to give any direct evidence demonstrating that the table amount is inappropriate, and that her budgets should be considered the minimum. Ms. A’s argument was also based on imputing income to Dr. D, an approach that I have rejected. 190 Ms. A contends that the determination of child support requires an assessment of the standard of living that the children enjoyed prior to separation. She argues that the parties enjoyed a “lavish lifestyle” with travel and the purchase of expensive properties and vehicles. She argues that Dr. D has failed to rebut the presumption of the table amount of support. However, Francis addresses that point. At para. 43, Bastarache J. stated: 43 The recognition of a presumption in favour of the Guideline figures does not compel a party seeking a deviation from this amount to testify or call evidence. No unfavourable conclusions should be drawn from this decision. Indeed, in some cases, such a party may not be able to provide relevant evidence. Parties seeking deviations from the Table amounts may simply choose to question the evidence of the opposing party. Whatever tactics are used, the evidence in its entirety must be sufficient to raise a concern that the applicable Table amount is inappropriate. To this end, I agree with Lysyk J. of the British Columbia Supreme Court in Shiels v. Shiels, [1997] B.C.J. No. 1924 (QL), at para. 27, that there must be “clear and compelling evidence” for departing from the Guideline figures. D. (D.M.) v. D. (R.L.) Loo J. 189

191 At para. 44 he stated: 44 While there must be an “articulable reason” for displacing the Guideline figures (see, for example, Plester v. Plester (1998), 56 B.C.L.R. (3d) 352 (S.C.), at para. 153), relevant factors will, of course, differ from case to case. I note, however, my agreement with MacKenzie J. in Plester, supra, as well as Cameron J.A. in Dergousoff, supra, that the factors relevant to determining appropriateness which Parliament expressly listed in s. 4(b)(ii), that is, the condition, means, needs and other circumstances of the children, and the financial abilities of both spouses, are likewise relevant to the initial determination of inappropriateness. Only after examining all of the circumstances of the case, including the factors expressly listed in s. 4(b)(ii), should courts find Table amounts to be inappropriate and craft more suitable child support awards. 192 Ms. A relies on a number of “high income cases” to demonstrate that on “multiple occasions”, the court has ordered child support at or near the table amount. Case # of Income of Table Amount Children Payor Amount Ordered Metzner v. Metz- 2 $1,250,000 + $12,359 $12,359 ner, 2000 BCCA investment 474 (B.C. C.A.) income on assets of $4,800,000 Pakka v. Nygard 1 $2,237,096 $15,091.54 $15,091.54 (2002), 61 O.R. (3d) 328 (Ont. S.C.J.) V. (L.R.) v. V. 1 $1,819,171.33 $11,761.70 $8,000 (A.A.), 2003 BCSC 1886 (B.C. S.C.) Debora v. Debora, 2 $5,500,000 $36,952 $23,000 2004 CarswellOnt (for 1 4987 (Ont. S.C.J.) child) Debora v. Debora, 2 $5,500,000 $36,952 $23,000 2006 CarswellOnt (for 1 7633 (Ont. C.A.) child) 190 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

Case # of Income of Table Amount Children Payor Amount Ordered Ewing v. Ewing, 2 $1,166,906 $13,766 $13,776 2006 ABQB 389 (Alta. Q.B.) Goguen v. Goguen, 2 $1,414,653 $17,489 $14,500 2008 BCSC 1747 (B.C. S.C.) Dyck v. Dyck, 2009 2 $3,045,205 $35,518 $15,000 MBQB 112 (Man. Q.B.) M. (G.) v. S. (S.), 1 $1,000,000 $8,000 $8,000 2012 BCSC 1491 (B.C. S.C.) Moors v. Moors, 1 $1,340,000 Not stated $9,260 2013 ABQB 740 retroactive (Alta. Q.B.) /$10,000 ongoing Yao v. Li, 2013 1 $1,600,000 $13,072 $13,072 BCSC 1314 (B.C. S.C.) 193 Each case is of course dependent on its facts. 194 In Metzner v. Metzner, 2000 BCCA 474 (B.C. C.A.) [Metzner], the extraordinary expenses were greater than one third of the basic child support because the daughter was a top ranked equestrian rider and the son played rep hockey and baseball. There was no evidence adduced to rebut the presumption of the table amount, and Finch J.A. found no factual differences from what was before the Court in Francis. 195 In Pakka v. Nygard, the order was an interim order, and the factors that were taken into account in ordering the table amount included the following: 1. the parties never lived together, so never established a standard of living; 2. the recipient mother had prepared only a preliminary budget; 3. it took nearly two years to obtain the interim order because of the father’s delays, and ability to pay was conceded; D. (D.M.) v. D. (R.L.) Loo J. 191

4. the child should be insulated from the father’s delay, and “the way to do that is to err on the side of generosity to the child.” 196 In Debora v. Debora, [2004] O.J. No. 4826 (Ont. S.C.J.); affirmed, [2006] O.J. No. 4826 (Ont. C.A.), the husband was found not credible, and engaged in blameworthy conduct. His financial statement indicated that he had an income of just over $500,000, but his minimum income was found to be $5,500,000. Because of his failure to pay appropriate support, the wife was forced to cut back on her expenses, including the housekeeper, clothes, and vacation, deplete her $700,000 in savings, and advance $250,000 on a line of credit in order to support herself and their three children. The Court of Appeal upheld the order for child support of $23,000 a month for the three children, which is still substantially less than the Guidelines table amount of $36,952 for one child. 197 Ms. A constantly argued throughout that the parties lived a “lavish lifestyle”. However, the word “lavish” in and of itself does not mean there is a presumption of the table amount, and what is lavish to one person may not be lavish to another. What Ms. A’s argument fails to address are the actual conditions, means, needs and other circumstances of each child, and whether the quantum of child support under s. 4 is the same as determining child support under s. 5. 198 Financial statements or budgets are not precise because a parent may underestimate or overestimate expenses. Many parents, particularly those who live a privileged lifestyle, have little or no experience in preparing budgets, or really know what they spend on various categories of expenses, unless it is a major item, such as private school tuition, a property purchase, or a vehicle purchase. However, in determining the reasonable needs of the a child (a factor set out in s. 4(b)(ii)) a budget must to be considered and reviewed with a consideration of all of the evidence. 199 Ms. A could not always verify the accuracy of some of the expenses she claimed. For example, she testified that she did not know whether the $700 she claimed for food in her November 2011 financial statement was the same when she lived with Dr. D because she never kept track of how much they were spending. She similarly testified that the expenses she noted for house repairs, maintenance, and utilities were estimates. How- ever, those expenses always vary from month to month. Moreover, when the parties were together, Ms. A reviewed each monthly joint bank statement and credit card statement. She was responsible for reconciling each amount on the monthly bank statements with her cheque register, and the 192 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

cash or debit withdrawals. She also reviewed each monthly credit card statement and made the payments. 200 Despite Ms. A’s evidence that some of the amounts were estimates, I find that the budget in her November 2011 financial statement reasonably represented what the parties spent when they were together. I say this because not only did Ms. A testify that was the case but because she prepared the financial statement by reviewing the parties’ joint bank accounts statements (which were used to cover all of the household expenses, including major purchases, such as vehicles) from December 31, 2008 to September 30, 2010, invoices, credit card statements, receipts, and her recollection, to categorize how the money was spent. 201 Ms. A testified about the changes and adjustments she has made in her life because of “a lack of funds”. They are quite specific: 1. she no longer hires someone to do the pool maintenance; 2. she now does yard work and garden work, but still hires people to do some of the yard maintenance; 3. she obtained a cheaper TV satellite package; 4. she obtained a cheaper property insurance package; 5. she takes fewer vacations, now only twice a year, if that; she and DJ no longer spend nights in Vancouver, or in five star hotels; 6. she spends more on DJ’s clothes now that he no longer attends private school; 7. she spends less on gifts; and 8. she cannot afford new activities for the children. 202 The changes are not significant. The monthly yard and pool care expense is reduced from $700 when the parties were together, to $600, a difference of $100. The cablevision expense, $117, is reduced from $117 to $109, a difference of $8 a month. The monthly house insurance of $802 paid by Dr. D until July 2013 is reduced to $420, a difference of $382. Ms. A claimed $400 a month for children’s clothing on her No- vember 2011 and May 6, 2013 financial statements. That amount is presumably for both children. In her September 5, 2014 statement, children’s clothing is $350. She states that is “what I am currently able to afford”. I am mindful that as Ms. A points out, she also needs groceries for when DJ is with her, and she uses fuel driving him around. 203 The largest monthly expense in Ms. A’s November 2011 financial statement is $4,100 for travel. Although she was never questioned about D. (D.M.) v. D. (R.L.) Loo J. 193

it, I assume the amount reflects the travel expense when the parties were together. Ms. A now only needs funds to travel with DJ. Dr. D was never questioned about the travel expense of $2,083 in his financial statement for travel, but at $2,083 is roughly half of the amount claimed by Ms. A. None of Ms. A’s evidence relating to travel when the parties were together was put to Dr. D on cross-examination. I do not know, for example, whether some of the trips were for Dr. D to attend a medical conven- tion, which they combined for a vacation, as is often the case. However, I have no doubt that the parties, like many high income earners who live on the West Coast, travelled to Hawaii, Mexico, the Oregon Coast, Cali- fornia, and New York. 204 Ms. A complains that Dr. D continues to live a lavish lifestyle and go on lavish vacations. Dr. D and his wife went to Hawaii for nine days in the fall of 2013. They also went to Hawaii and paid for a number of family and friends to attend to their wedding. In 2014 they had a 10-day vacation in Las Vegas and river rafting in the Grand Canyon. However, Dr. D’s vacations are not entirely out of line with where Ms. A has taken the children. 205 Ms. A was asked whether she could not afford to pay for any of the expenses listed on her 2011 financial statement. She thought a while before she testified that she could not afford to pay the expenses out of the support payment she was receiving. When questioned further, she testified that the expenses she was not paying were the ones she mentioned, which I took to mean, the expenses that Dr. D was paying. 206 Ms. A testified that even with receiving $15,000 in spousal support and $15,000 in child support, she could not cover a lot of her expenses, and “was dipping into capital I have through our settlement”. She claims that because Dr. D no longer paid her $7,500 a month in child support, she has been forced to use the capital she received from her property settlement. 207 The only evidence of any spending that required Ms. A to use her capital is her evidence that the $35,000 she paid for her 2015 Ford pick- up truck (after the trade-in) came from her capital. But it seems to me that with $60,000 in investment income, she ought to have been able to pay for the truck from the interest, without resorting to her capital. 208 It also seems to me that if Ms. A is not spending on DJ what she used to spend on him when she and Dr. D were together, it is related not to 194 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

inappropriate child support, but to her legal fees, which she claims are $33,400 a month. She testified: Q Can you explain to the court why in any month you are not spending all of the money that you’re receiving. A To sum it up (indiscernible), to sum it up, I have — I have been living, I’m going to say, very cautiously and frugally since the separation because my only source of income coming in is my support. And I now need to watch how I’m spending my money, and where I’m spending my money. One of my biggest black clouds that I carry with me every single day is that this whole four-and-a-half years of legal proceedings has been absolutely financially draining, and a humungous expense. And that worries me on a day-to-day basis, how am I going to be able to pay all of this, and live at the same time. So I have — I have no real sense of I’m going to say peace or security financially yet, because this is such a long, ongoing process. That I actually don’t know where I stand financially until this is all over. So I have chosen to cut back on a lot of things, compared to the standard of living that I had when I was with Dr. D for that reason. And also for the reason that I don’t even have the — even close to the extent of funds coming in as we did when we were together to live. So I needed to make changes. [March 4, 2015 trial transcript.] 209 Ms. A argues that the court should only consider the standard of living in the parties’ household prior to separation, and not consider DJ’s standard of living or circumstances when he is with RJ. However, it seems to me I cannot blindly ignore the fact that RJ and Ms. A have totally different standards of living, and can afford or not afford to buy or give DJ a totally different life experience.

E. Conclusions Child Support - Generally 210 The parties may have spent “lavishly” on acquiring and renovating their properties, but they did not spend “lavishly” on the children. Neither were they frugal with them. The children’s standard of living before separation and after separation is not much different. Ms. A gave no evidence that ML went without when she was living with her, after the parties separation, other than to say, that when she took the children to Mexico and Hawaii, she was not able to take them on all of the activi- D. (D.M.) v. D. (R.L.) Loo J. 195

ties they wanted, without specifying what those activities were or what they cost. 211 I cannot seriously accept Ms. A’s suggestion that she would reasonably consider purchasing an $8,000 to $12,000 mountain bike for DL when he only rides with his friends. While most children have all kind of wants, not all of their wants are reasonable. 212 I am satisfied on all of the evidence that from July 2010 to July 2013 when ML went to live with Dr. D, the appropriate amount of child support payable by Dr. D to Ms. A is $9,000 a month. This is based on the standard of living of the children before and after separation, having regard to Ms. A’s monthly expenses, her reduced spending, the amounts she was able to save, the children’s trust funds, the fact that Dr. D continued to pay for almost all of the expenses related to maintaining the former matrimonial home and all of the private school tuition, and the fact that all of the children’s needs were met — or could be met. Any additional amounts over $9,000 a month would, in my view, not benefit ML or DJ, but result in a transfer of wealth from Dr. D to Ms. A.

Extraordinary Expenses for ML 213 Section 7 of the Guidelines provides: (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation: ... (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; ... (1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means (a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the 196 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

amount that the court has otherwise determined is appropriate; or (b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account (i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (v) any other similar factor that the court considers relevant. 214 Dr. D claims that ML’s private school tuition and related fees are a s. 7 expense. It is clear from the construction of s. 7 that primary or secondary school expenses must be extraordinary to qualify under s. 7. Here, they are not an expense that exceeds the amount that Dr. D can reasonably cover, pursuant to s. 7(1.1)(a). I have considered the requirements of s. 7(1.1)(b), including the amount of the expense in relation to Dr. D’s income, the overall cost of education, and any special needs of ML. I conclude that ML’s private school tuition and related fees do not meet the definition of “extraordinary” set out in s. 7(1.1) of the Guidelines and do not qualify as a s. 7 expense.

Child Support for DJ 215 The following principles emerge from H. (U.V.): 1. Section 5 is an exception to the presumptive rule of s. 3, allowing a discretion to determine what is “appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child”; 2. The word “appropriate” must be broadly defined to mean “suitable” rather than merely “adequate”; D. (D.M.) v. D. (R.L.) Loo J. 197

3. The legal duties of the natural parents must be considered in accordance with the non-discretionary presumptive rule of s. 3; 4. Once the duty of the natural parent has been determined, the court determines the step-parent’s obligation, “having regard to” that duty and “these Guidelines”, which includes the objectives in s. 1: (a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both parents after separation; (b) to reduce conflict and tension between parents by making the calculation of maintenance orders more objective; (c) to improve the efficiency of the legal process by giving courts and parents guidance in setting the levels of maintenance orders and encouraging settlement; and (d) to ensure consistent treatment of parents and children who ae in similar circumstances. 5. The discretion under s. 5 is not so broad so as to encompass all circumstances; 6. Based on the Guidelines’ “children-first” perspective, “primacy must be given to the children’s standard of living” when the parties were together; 7. Where an amount of support ordered under s. 5 results in a standard of living beyond which the children reasonably enjoyed when the parties were together, it is likely not “appropriate” because it results in a “windfall” or wealth transfer to the recipient; and 8. Courts have the discretion under s. 5 to order that the child support payable be zero, if that is considered appropriate in the circumstances. 216 For the reasons I have set out on child support generally for both ML and DJ, the fact that DJ earns spending money from part-time employment, RJ contributes to his support, DJ has more than $163,000 in trust funds for his education or other needs, and Dr. D has no parenting time or little contact with him, I find the appropriate amount of child support payable by Dr. D to Ms. A for DJ is $1,500 a month.

Summary 217 To summarize: 198 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

1. Income is imputed to Ms. A as follows: i. from July 2013 to December 31, 2013: $27,500 ii. from January 2014 to December 2014: $85,000 iii. from January 2015 onwards: $115,000 2. The appropriate amount of Dr. D’s child support payments to Ms. A for both ML and DJ from the date of separation to July 31, 2013 is $9,000 a month; 3. The appropriate amount of child support Dr. D must pay to Ms. A for DJ from August 2013 going forward is $1,500 a month, until DJ turns 19 years of age; 4. Ms. A shall pay to Dr. D child support for ML from August 1, 2013 based on her imputed income; and 5. Ms. A shall pay to Dr. D 15 percent of the cost of Dr. Elterman’s report. 218 Various adjustments and set-offs must be made, including the $38,000 Dr. D owes Ms. A for the sale of the Kelowna home. If the parties are unable to agree, there will be a reference to the Registrar. 219 The parties may speak to the issues of costs. Action allowed. Friedlander v. Claman 199

[Indexed as: Friedlander v. Claman] Eran Chaim Friedlander, Claimant and Jody Lynne Claman and 567773 BC Ltd. (Inc. No. 567773), Respondents British Columbia Supreme Court Docket: Vancouver E132630 2015 BCSC 2409 Gropper J., In Chambers Heard: November 25, 2015 Judgment: December 18, 2015 Judges and courts –––– Contempt of court — Contempt in family law matters — Custody and access orders –––– Parties married in 2007, had child in 2007 and divorced in 2014 — Parties agreed to joint custody and shared guardianship of child — Father was granted final decision-making authority with respect to child’s education, linguistic, religious and spiritual upbringing and heritage — Parties’ relationship was high conflict — Court issued several orders — Court appointed parenting coordinator — Father brought motion for order finding that defendant mother was in contempt of court — Motion granted — Mother found in contempt of court — Mother was aware of court orders and refused to abide by them — Mother failed to retain, attend and utilize parenting coordinator until July 2015, failed to abide by pick-up locations, and did not restrain from publicizing information concerning trial — Mother breached court orders on 32 occasions — Breaches were ongoing, repetitive, and deliberate. Judges and courts –––– Contempt of court — Contempt in family law matters — Miscellaneous –––– Parties married in 2007, had child in 2007 and divorced in 2014 — Parties agreed to joint custody and shared guardianship of child — Father was granted final decision-making authority with respect to child’s education, linguistic, religious and spiritual upbringing and heritage — Parties’ relationship was high conflict — Court issued several orders — Court appointed parenting coordinator — Father brought motion for order finding that defendant mother was in contempt of court, and other relief — Motion granted — Mother found in contempt of court and fined $250 per breach for total of $8,000 — Mother ordered to provide security in amount of $16,000 — Mother was aware of court orders and refused to abide by them — Mother failed to retain, attend and utilize parenting coordinator until July 2015, failed to abide by pick-up locations, and did not restrain from publicizing information concerning trial — Mother breached court orders on 32 occasions — Breaches were ongoing, repetitive, and deliberate — Mother was unlikely to comply with court orders in future — Exceptional case warranted security for mother’s behaviour. 200 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

Family law –––– Custody and access — Variation of custody order — Fac- tors to be considered — Conduct of parent — Inability to communicate –––– Parties married in 2007, had child in 2007 and divorced in 2014 — Parties agreed to joint custody and shared guardianship of child — Father was granted final decision-making authority with respect to child’s education, linguistic, religious and spiritual upbringing and heritage — Parties’ relationship was high conflict — Court appointed parenting coordinator — Mother breached court orders — Father brought motion for variation of custody, and other relief — Mo- tion granted — Father granted sole custody of child — Father granted all decision-making authority in parenting responsibilities in s. 41 of Family Law Act — Mother was in contempt of 32 court orders — Contempt of court represented material change in circumstances, such that variation of custody and parenting scheme could be considered — Psychologist-parenting coordinator’s report was to effect that joint custody was having negative effect on child — Mother challenged every aspect of child’s life: school, father, friends and security — Material changes in circumstance were having destructive effect on child. Cases considered by Gropper J., In Chambers: Chin Pang v. Chin Pang (2013), 2013 ONSC 2564, 2013 CarswellOnt 7824, [2013] O.J. No. 2649 (Ont. S.C.J.) — considered De Melo v. Gooding (2010), 2010 ONSC 2271, 2010 CarswellOnt 2293, 84 R.F.L. (6th) 369 (Ont. S.C.J.) — considered Friedlander v. Claman (2014), 2014 BCSC 2136, 2014 CarswellBC 4142 (B.C. S.C.) — referred to Friedlander v. Claman (2014), 2014 BCSC 2587, 2014 CarswellBC 4144 (B.C. S.C.) — referred to G. (L.) v. G. (R.) (2012), 2012 BCSC 1365, 2012 CarswellBC 2814 (B.C. S.C.) — followed Gilmour v. Herrick (2013), 2013 BCSC 1591, 2013 CarswellBC 2640 (B.C. S.C.) — followed Gordon v. Goertz (1996), [1996] 5 W.W.R. 457, 19 R.F.L. (4th) 177, 196 N.R. 321, 134 D.L.R. (4th) 321, 141 Sask. R. 241, 114 W.A.C. 241, [1996] 2 S.C.R. 27, (sub nom. Goertz c. Gordon) [1996] R.D.F. 209, 1996 Carswell- Sask 199, [1996] S.C.J. No. 52, 1996 CarswellSask 199F (S.C.C.) — followed Larkin v. Glase (2009), 2009 BCCA 321, 2009 CarswellBC 1780, 72 C.P.C. (6th) 18, [2009] 11 W.W.R. 22, 96 B.C.L.R. (4th) 94, 70 R.F.L. (6th) 263, (sub nom. Glase v. Glase) 274 B.C.A.C. 1, (sub nom. Glase v. Glase) 274 W.A.C. 1, [2009] B.C.J. No. 1382 (B.C. C.A.) — followed Laurin v. Martin (2005), 2005 CarswellOnt 2989, [2005] O.J. No. 2899, [2005] O.T.C. 591 (Ont. S.C.J.) — referred to Laurin v. Martin (2005), 2005 CarswellOnt 5084 (Ont. C.A.) — referred to Pringle v. Pringle (2009), 2009 BCSC 1446, 2009 CarswellBC 2804 (B.C. S.C.) — considered Friedlander v. Claman Gropper J. 201

Topgro Greenhouses Ltd. v. Houweling (2003), 2003 BCCA 355, 2003 Car- swellBC 1430, 184 B.C.A.C. 118, 302 W.A.C. 118, 35 C.P.C. (5th) 313, [2003] B.C.J. No. 1382 (B.C. C.A.) — considered Statutes considered: Family Law Act, S.B.C. 2011, c. 25 s. 37(2) — considered s. 37(3) — considered s. 41 — considered s. 47 — considered Rules considered: Supreme Court Family Rules, B.C. Reg. 169/2009 R. 21-7 — considered R. 21-7(1) — considered R. 21-7(3) — considered

MOTION by father for order finding that defendant mother was in contempt of court and for variation of custody order.

K. Thompson, for Claimant L.A. Kahn, Q.C., for Respondents

Gropper J., In Chambers: Introduction 1 After a 10 day trial in June 2014, I issued reasons for judgment on August 7, 2014, indexed at 2014 BCSC 2587 (B.C. S.C.) in respect of parenting issues. On November 17, 2014, I issued reasons for judgment in regard to financial issues, indexed at 2014 BCSC 2136 (B.C. S.C.). It is not necessary to review those reasons, but I will address aspects of them to establish the context for this application. 2 The parties were married in August 2007. They were divorced in Oc- tober 2014. They have one child, a daughter born in September 2007. She is currently eight years old. 3 The parenting issues in contention at the trial were whether the parties’ daughter would remain at her current school, Vancouver Talmud Torah (“VTT”) or attend Collingwood School or another school in West Vancouver; whether Mr. Friedlander would have final decision-making authority in respect of the child’s education and her cultural, linguistic, religious and spiritual upbringing and heritage; and other matters. 202 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

4 In the reasons for judgment in respect of parenting, I determined that for reasons described at paras. 120-129 and paras. 130-133 the child should continue her elementary schooling at VTT. I granted Mr. Fried- lander the parenting responsibilities he sought. 5 The parties agreed that they have joint custody and shared guardianship of their child. They also agreed that each have full parental responsibilities in respect of Hannah, except those where I determined the claimant shall have final decision-making authority. 6 There has been no successful appeal from either of my decisions, thus the child will attend VTT until she completes grade 7. 7 Because of the nature of the relationship between the parties, which is high conflict, and to respect their agreement regarding joint custody and guardianship, I made several specific orders to avoid any conflict which would negatively affect the best interests of the child. 8 I also appointed a parenting coordinator, Dr. Michael Elterman. He was to be jointly retained by both parents and each parent was responsible for one half of his fees. Dr. Elterman, as a parenting coordinator, was to have final decision-making authority in respect of any disagreement between the parents. 9 Since making the order, there have been significant conflicts between the parties, in respect of parenting generally and specifically in respect of the child’s attendance at VTT. For reasons that will become apparent, Dr. Elterman has had limited success as a parenting coordinator. 10 The claimant says that the respondent is in breach of several court orders and is in contempt of court. He asks that the respondent be fined and be required to provide security to ensure good behavior in the future. He also says that the respondent’s failure to abide by court orders consti- tutes a material change in circumstances and is a ground for varying the parenting order. 11 On November 10, 2015, I ordered that Dr. Elterman provide an opinion in respect of his view and the child’s perspective on the following questions: 1. Are the parenting arrangements currently in place for Hannah working for Hannah? 2. Should the parenting time that each party has during the school year change, and if so, how? 3. Would it be in Hannah’s best interest to live primarily with one or the other of her parents during the school year, and if so, who? Friedlander v. Claman Gropper J. 203

4. What is Hannah’s experience with respect to what is going on in her life? 12 In these reasons, I will first address the claimant’s application to find the respondent in contempt of court for breaches of orders pronounced August 7, 2014 and entered December 19, 2014 and orders pronounced November 17, 2014 and entered December 23, 2014; I will then deal with the claimant’s application to vary the order to grant the claimant sole custody and full parental responsibilities in respect of Hannah.

Contempt The Law 13 The law of civil contempt has been outlined in many cases in the family law context. I will review the basic principles referred to in G. (L.) v. G. (R.), 2012 BCSC 1365 (B.C. S.C.) at paras. 281-286: 1. A Supreme Court justice has an inherent jurisdiction to punish a party for contempt of a court order. 2. The terms of the order allegedly breached must be clear and the facts supporting the breach proven beyond a reasonable doubt. 3. Rule 21-7(1) of the Family Rules provides for punishment for contempt by committal to jail, or fine, or both. Rule 21-7(3) permits the court to order security for future good behaviour instead of or in addition to committal or a fine. 4. The primary goal of a sentence for contempt of a court order is to secure compliance with court orders rather than punishment. 14 The court explained the importance of compliance with a court order in Larkin v. Glase, 2009 BCCA 321 (B.C. C.A.) at para. 7: A court order must be obeyed until and unless it is reversed. Refusal to obey court orders strikes at the heart of the rule of law, at the core of the organization of our society. If court orders can be disregarded with impunity, no one will be safe. Our free society cannot be sus- tained if citizens can decide individually what laws to obey and what laws to disregard. Madam Justice McLachlin, as she then was, stated in United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901 at 931: Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependent on the ability of the 204 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court. 15 The court referred to the decision of Topgro Greenhouses Ltd. v. Houweling, 2003 BCCA 355 (B.C. C.A.), per Smith J.A., for the Court at para. 6: [6] To knowingly breach a court order is to commit a contempt of the court. All that is necessary to establish the contempt is proof of deliberate conduct that has the effect of contravening the order; an intent to bring the Court into disrepute or to interfere with the due course of justice or with the lawful process of the Court is not an essential element of civil contempt: R. v. Perkins (1980), 51 C.C.C. (2d) 369 at 370-71 (B.C.C.A.). ...

Specific Allegations and Responses 16 I will review the claimant’s allegations and the responses offered by the respondent and provide my decision in respect of each allegation.

i. The parenting coordinator 17 Paragraph 49 of the August 7, 2014 court order reads: 49. Dr. Michael Elterman shall be appointed as the parties’ parenting coordinator. The parenting coordinator shall be jointly retained by both parents, and each parent shall be responsible for one-half of the parenting coordinator’s fees. The parenting coordinator shall have final decision-making authority in respect of a disagreement between the parents, provided however that the parenting coordinator may not make a decision that is inconsistent with the terms of this order or the oral decision of Madam Justice Gropper. 18 The claimant alleges that the respondent refused to agree on who would act as a parenting coordinator. Names were put forward by the claimant and the respondent did not respond. The respondent advised that she was concerned about the cost of the parenting coordinator. Dr. Elterman quoted the lowest hourly rate. I appointed him in December 2014. 19 The respondent did not sign or pay Dr. Elterman’s retainer and did not attend an appointment with him until July 2015. The claimant made several requests of the respondent to contact Dr. Elterman. 20 The claimant asserts that the respondent’s delay in retaining Dr. Elterman was in breach of the court order. Instead of Dr. Elterman ad- Friedlander v. Claman Gropper J. 205

dressing the disagreements between the parties, such as the child’s required dental work, the claimant had to apply to court to have matters resolved. In spite of the appointment of a parenting coordinator, the respondent on several occasions has involved or threatened to involve the Ministry of Children and Family Development. 21 The respondent says that she did retain the parenting coordinator on June 19, 2015, and that she met him in July 2015. She did not have the money to retain Dr. Elterman earlier and had to borrow money from friends in order to do so in July 2015.

ii. Pick-up location and pick-up times 22 Paragraph 6 of the August 7, 2014 order reads: 6. The change over time for school holidays shall be at 10:00 a.m. and the parent receiving Hannah shall pick her up from the other parent. If the claimant is to pick-up Hannah, the pick-up shall be at the respondent’s store in West Vancouver and if the respondent is to pick Hannah the pick-up shall be at the claimant’s downtown office. 23 The claimant says that on January 11, 2015, he and the child waited at his office for over thirty minutes after the prescribed pickup time for the respondent to arrive. When the claimant texted the respondent to determine where she was, she texted back that that she had been waiting at her store, “just like I told you”. The claimant says that she had not told him that. She arrived at his office 50 minutes late for the pickup. 24 The claimant says that on March 30, 2015 he was to pick the child up from the respondent’s store at 10 a.m. for the spring break holiday. He and the child were travelling to London, England for the holiday. The claimant had the itinerary. On March 28, 2015, the respondent outlined certain criteria that she said had to be met or the child would not be travelling with him. His counsel confirmed with the respondent’s counsel that he was not required to meet the respondent’s criteria and that the child had to be ready for pick up at 10 a.m. on March 30, 2015 at the respondent’s store. 25 The claimant says that when he arrived at the respondents’ store with his assistant at the prescribed time on March 30, 2015, the respondent arrived 10 minutes later and refused to allow the child out of her car. The claimant says that she shouted out of the car window at the assistant (within the child’s and the claimant’s earshot) that the child will not go anywhere unless she gets the information that she required including the claimant’s brother’s address, phone number and a full itinerary and that 206 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

she was on the phone with her lawyer and her lawyer was contacting the Ministry and the police. 26 The claimant describes the child in the respondent’s car as looking afraid, sad and worried. 27 The claimant contacted his lawyer and emails between his lawyer and the respondent’s lawyer were exchanged. The respondent remained in her car with the child for a further 30 minutes, after which, the claimant says, the child was released. The claimant says that the child looked very stressed and shaken by the situation. 28 On April 29, 2015, the claimant says the respondent was not at the store with the child when he went to pick her up at the prescribed time. He waited there for 50 minutes and then he attended at the doctor’s office. The child and the respondent were there. He says that the child looked away when he came in and refused to speak to him. When he spoke to the child later that evening the child said that her mother (the respondent) hates the claimant and that he is not a good person. 29 The respondent says that there was confusion about the pick up on January 11, 2015. She does not deny the events of March 30, 2015 but asserts the details that she required of the claimant were information she has requested in the past. In respect of the events of April 29, 2015, she says that Hannah was very ill.

iii. Failure to provide doctor’s notes in a timely way 30 Paragraph 10 of the August 7, 2014 court order reads: 10. If Hannah misses school without both parents agreeing to the absence by email to each other, the parent than having Hannah in their care shall forthwith provide to the other parent and to Hannah’s school a doctor’s note explaining the reason for the absence. 31 The claimant says that the respondent failed to provide doctor’s notes forthwith when the child missed school on February 23, April 29 and May 11, 2015. The respondent says that notes were provided. 32 The claimant alleges that that the respondent accuses him of not taking proper care of Hannah when she spends time at his home and has made those accusations by email over 12 times between January and June 2015. 33 On several occasions between January and May 2015, Hannah was absent from school and the notes were late. The claimant expresses concern that because the child sees the same doctor as the respondent, the Friedlander v. Claman Gropper J. 207

doctor appears to provide school notes very easily at the respondent’s request; that the doctor has provided an absent note at the respondent’s request for a day when the doctor did not see the child; the child sees other doctors in the clinic; and the doctor rather seems to be influenced by the respondent and assists her in complaints to the Ministry without considering the claimant’s perspective.

iv. Telephone access 34 Paragraphs 11 - 13 of the August 7, 2014 court order read: 11. During the Regular Schedule: a) the claimant shall have telephone access to Hannah, with the claimant to make the call, on the middle day of the respondent’s five-day parenting time, which shall be every other Sunday, commencing Sunday, September 7, 2014, between 7.00 p.m. and 7.30 p.m.; and b) the respondent shall have telephone access to Hannah, with the respondent to make the call, on the middle day of the claimant’s five-day parenting time, which shall be every other Friday, commencing Friday, Sep- tember 12, 2014, between 7.00 p.m. and 7.30 p.m. 12. During Winter Break, Spring Break and the school summer holidays: c) The claimant shall have telephone access to Hannah, with the claimant to make the call, every Tuesday during Winter Break, Spring Break or the school summer holidays, as the case may be, when Hannah is in the respondent’s care, between 7:00 p.m. and 7:30 p.m.; and d) The respondent shall have telephone access to Hannah, with the respondent to make the call, every Tuesday during Winter Break, Spring Break or the school summer holidays, as the case may be, when Hannah is in the claimant’s care, between 7:00 p.m. and 7:30 p.m. 13. If either parent cannot reach the other for the first parent’s telephone access, the first parent shall send one respectful text message to the respondent within the timeframe requesting to speak to Hannah and the other parent shall return the call by no later than 8:00 p.m. 208 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

35 The claimant says that the respondent failed to provide telephone access to the child and failed to abide with the telephone access schedule. She demanded calls and made more calls than the order prescribed. He refers to the breaches occurring on February 1, March 21, March 29 and April 2, 2015. 36 There were difficulties with the telephone calls between the child and the non-parenting parent. I suspended the phone calls in my order of June 29, 2015, until Dr. Elterman determined otherwise. The calls have not been reinstated. 37 The claimant maintains that the respondent did not abide by the Au- gust 7, 2014 order in respect of the telephone access schedule. The respondent says that the claimant is aware that the respondent lives in a concrete building and the reception is poor, and that he has been provided with her home telephone number. She does not deny that she breached the order on 4 occasions.

v. Respectful communication and limiting communication 38 Paragraph 15 of the August 7, 2014 order reads: 15. All communications between the parents shall be respectful. Sub- ject to paragraphs 11, 12 and 13 regarding telephone communication and except in the event of an emergency, all communications shall be by email and shall be restricted to matters relating to Hannah, including education, schedule change requests, extracurricular activities, travel and health issues and shall be restricted to two emails per week. 39 The claimant provided the respondent’s communication with him by text and email on February 4 and 23, March 23, 28 and 31, April 2, May 11, 22 and 25, June 7, 2015 and between April 1 and 2, May 22 and 26, June 7 and 9, June 1 and 8. This communication includes name-calling, degrading language and insinuations that he is not well, or other accusations, including assertions that he threatened the child, that he called the child a pig, that he does not listen to the child, that his brother is a criminal, that the respondent is concerned about the child’s sleeping arrangements, that the claimant is lying, that the child is very tired and sad, or extremely stressed and under pressure, that the claimant is under stress, that he is fabricating nonsense and that he is unorganized. The communication also demonstrates that the respondent sent numerous emails on a single day, made numerous phone calls on a single day and sent several emails and text messages in a four-day period. Friedlander v. Claman Gropper J. 209

40 The respondent says most of the communications relate to her concern for Hannah’s health and school.

vi. False and derogatory statements in front of the child to the public 41 Paragraph 16 of the August 7, 2014 court order reads: 16. The claimant and the respondent shall be restrained from making false or derogatory statements to or about any parent in front of Hannah or to the public. 42 The claimant refers to five occasions where the respondent breached this order: December 19, 2014 and following: March 7, 8 & 23, March 30 and April 29, 2015. 43 The claimant describes a conversation he had with the child on Janu- ary 7, 2015, during which the child appeared to be upset and disturbed. The child told him that the respondent followed the share price of the claimant’s company on her phone and that the share price of Dusolo (the claimant’s company) was declining. The child said she heard her mother talking about the father’s company to her friends at the respondent’s store, asking them to post bad comments about the claimant and the company on the publication “StockHouse” (described below). The child said that the respondent’s plan was to bring the company’s share price down to six cents so the respondent could sue him. The child said she was concerned about where she and the claimant would live if the claimant had no money. 44 The claimant refers to events where he and the respondent were present, particularly on January 27, 2015, where the child froze and stopped looking at him. The child advised him later that she was afraid to say goodbye and kiss or hug him because of how the respondent would behave if she did. 45 The claimant described other occasions where the child told him of the respondent’s comments: • On April 29, 2015, the child told the claimant that the respondent hates him, that the claimant is a bad person and he and his family are dangerous criminals. • The child told the claimant that when she is dropped off or picked up from school she is afraid to be affectionate with him because if the respondent sees that, she will be angry with her. 210 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

• The child has also told the claimant that the respondent tells her with whom she can be friends at school and that the claimant “pawns” her off with other parents while he is travelling. 46 The claimant says that he is concerned that the respondent “continues to try to manipulate [the child] and damage her trust and relationships” with him, his family and his friends. He is concerned that the respondent is trying to damage his social network and of the emotional and psychological impact of the respondent’s behaviour on the child. 47 The claimant learned that at a public talk in Victoria on March 7 and 8, 2015, the respondent was a guest speaker and stated, amongst other things, that the claimant had had a stroke, that he sued her for millions of dollars, that the judge did not find her credible but her money was. The claimant provided a recording of the public talk. 48 The claimant refers to false and derogatory posts on StockHouse, the leading online investors’ message board and forum, through accounts that the respondent set up through aliases or friends, upon which she de- fames and interferes with the welfare of his company, its shareholders and the claimant. Through court orders, the claimant determined that the posts were made either from the respondent’s home or from her business and started on December 19, 2014. The posts accuse the claimant of being a scoundrel, running a “pump and dump” operation, and his brother of being a criminal along with other equally negative comments. 49 The respondent says that her assistant posted some of the material, but denies that she has posted any comments about the claimant or his business. Other comments she says were taken out of context.

vii. Publicizing information concerning the trial, the proceedings and Hannah 50 Paragraph 50 of the order of August 7, 2014 [2014 CarswellBC 4144 (B.C. S.C.)] reads: 50. Neither the claimant nor the respondent may post anything about the trial, these proceedings or Hannah on any form of social media, including, without limiting the foregoing, Twitter, Facebook and LinkedIn. 51 The claimant refers to posts on the respondent’s Twitter account referring to the trial, referring to information about the child and concerning these proceedings. 52 The respondent suggests that re-tweeting is not a breach of the order and she did not believe a breach occurred when photos of the child ap- Friedlander v. Claman Gropper J. 211

peared, but did not include her face. She refers to her intern as the person posting material, rather than her.

viii. Return of belongings 53 Paragraphs 5 and 6 of the November 17, 2014 court order read: 5. The respondents shall return to the claimant on behalf of DuSolo Fertilizers Inc. the following artwork: ... 6. The respondents shall return to the claimant by January 15, 2015 all of his personal belongings, including, without limiting the foregoing, the following: ... 54 The respondent has not made the “Fountain Painting” available for pick up and it has not been returned. The respondent has not made available the American Girl dolls, which the claimant and his family members bought for the child. The respondent has not made available personal items, including those which were specifically ordered to be returned. 55 The respondent says she attempted to arrange a time in January 2015.

ix. Special expenses 56 Paragraphs 14 and 18 of the November 17, 2014 [2014 CarswellBC 4142 (B.C. S.C.)] court order read: 14. Subject to paragraph 15, special or extraordinary expenses shall be shared equally and each party shall pay their one-half share of that expense directly to the third party to whom it is owed. 18. The respondent, Jody Lynne Claman, shall pay to the claimant on the first of each month, commencing January 1, 2015, $612.50 for her share of Hannah’s ongoing current special and extraordinary expenses. 57 The respondent did not pay special expenses as required until the night before the hearing of this matter, when she delivered a cheque through counsel.

Position of the Parties 58 The claimant asserts that he has proven that the respondent has breached court orders repeatedly, beyond a reasonable doubt. He says that she “behaves as she pleases” and expects that nothing will happen. The claimant has provided further affidavits that demonstrate that the contempt is ongoing, although this hearing is confined to the allegations 212 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

addressed in the application. The claimant says that the respondent is well aware of the terms of the order but only refers to it when she considers that the claimant is in breach. 59 The claimant asserts that the punishment for her breach of court orders should be severe. She should be fined for each breach and should post security to secure her future compliance. 60 The respondent does not deny that most of the incidents alleged occurred. She says that the issue is whether her actions were willful. She says that they were not and thus the criminal standard of proof beyond a reasonable doubt has not been met. At most, the respondent’s actions have been emotional, reactive and irresponsible. They have been trivial and represented “hiccups” in a joint parenting scheme.

Decision 61 I find that the claimant has proven beyond a reasonable doubt that the respondent is in contempt of court because of her breaches of court orders. I reject the respondent’s general comments that she did not willfully breach the court orders. That is simply not true. She is aware of the court orders and refuses to abide by them. Her breaches are ongoing and repetitive. Her conduct is not emotional, reactive and/or irresponsible; it is deliberate conduct. It cannot be countenanced by this court. 62 I also reject the respondent’s description of her breaches as “trivial.” A breach of a court order is never trivial. 63 I find that contrary to paragraph 49 of the August 7, 2014 order, the respondent failed to retain, attend and utilize the parenting co-ordinator until July, 2015. Her breach of that order resulted in ongoing disagreement with no mechanism for resolution. Her response that she could not afford to retain a parenting co-ordinator does not absolve the respondent of responsibility. Her failure to abide by this order was wilful and she is in contempt of the order. 64 I find that in breach of paragraph 6 of the August 7, 2014 order, the respondent failed to abide by the pickup location and pick up times for Hannah and failed to make Hannah available at the court ordered location and time on three occasions, January 11, March 30, and April 29, 2015. Her actions amounted to wilful disobedience and were unjustified. She is in contempt of the order. 65 I find that in breach of paragraphs 11-13 of the August 7, 2014 order, the respondent failed to abide by the telephone access schedule set out in Friedlander v. Claman Gropper J. 213

the order. She called more often and demanded calls too often and failed to facilitate calls from Hannah to the claimant. She breached the order on four occasions. Her actions were willful and she is in contempt of the order. 66 I find that in breach of paragraph 15 of the August 7, 2014 order, the respondent breached the order by failing to communicate respectfully, by failing to limit communications to matters only related to Hannah and failed to abide by the restriction on emails to two emails per week on 15 occasions. She willfully defied the court order and she is in contempt. 67 I find that in breach of paragraph 16 of the August 7, 2014 order, the respondent has made false and derogatory statements to or about the claimant in front of Hannah and the public, five times, including in person to Hannah, online through StockHouse, during public speeches and to authorities. She is in contempt of that court order. 68 I find that in breach of paragraph 50 of the August 7, 2014 order, the respondent has failed to follow the restraint on publicizing information concerning the trial, the proceedings and Hannah on any form of social media and by publishing information concerning the trial, the proceeding and Hannah on social media including on Twitter, Facebook, online through StockHouse, and public speeches, three times. Her excuse that the information was published by someone else, her assistant or intern, even if I believed it, does not absolve the respondent of responsibility. She is in contempt of that court order. 69 I find that the respondent is in contempt of paragraphs 5 and 6 of the November 17, 2014 order by failing to return the Fountain painting and other personal items to the claimant. 70 I find that the respondent is in contempt of paragraphs 14 and 18 of the November 17, 2014 order by failing to pay special expenses to the claimant on the 1st of each month, as required. Although she provided a cheque in the prescribed amount to counsel for the claimant eventually, she is in breach of the court order that she pay special expenses on the first of each month. 71 In respect of the failure to provide doctor’s notes as required by paragraph 10 of the August 7, 2014 order, the evidence is in dispute. I am unable to determine if the respondent is in contempt of that order. 72 In respect of punishment, a monetary penalty in respect of each breach of a court order is appropriate. In some cases, the respondent breached the court order on several occasions. In total, the respondent 214 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

breached court orders on 32 occasions. I impose a fine of $250 for each breach for a total of $8,000. 73 I have no confidence in the respondent’s ability to comply with court orders in the future. I base this on my findings referred to in my reasons for judgment of August 7, 2014, where I found that the respondent failed to abide by orders of this court at para. 110 and her continuing failure to abide by court orders as I have described. I consider that this is an exceptional case where security must be given in accordance with Rule 21-7(3) for the person’s good behaviour. Double the amount of the fine is sufficient for this purpose. 74 The claimant asked for specific orders in his application: restrictions on the respondent’s communication with him and an order restraining the respondent from making false or derogatory comments. I have made these orders already and I expect the respondent to comply with them. 75 I order that the respondent, Jody Lynne Claman, born January 11, 1964 is guilty of contempt of court in accordance with Rule 21-7 of the Supreme Court Family Rules by her failure to comply with my orders pronounced August 7, 2014 and November 17, 2014 and entered Decem- ber 19, 2014 and December 23, 2014 respectively. 76 I order that Jody Lynne Claman pay the total amount of the fine ($8,000) and provide security in the amount of $16,000 to the Vancouver Court Registry within 30 days of the date of this judgment.

Application to Vary The Law 77 Section 47 of the Family Law Act, S.B.C. 2011, c. 25, provides: 47 On application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person. 78 In Gilmour v. Herrick, 2013 BCSC 1591 (B.C. S.C.), Madam Justice Russell considered whether this provision changed the “material change in circumstances” test set out by the Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.). She stated at paras. 13 and 14: [13] Pursuant to s. 47 of the FLA, on application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since making that order, there has been a Friedlander v. Claman Gropper J. 215

change in the needs or circumstances of the child, including because of a change in the circumstances of another person. The Court of Appeal in Boychuk v. Singleton, 2008 BCCA 355 at paras. 14 - 15 held that while s. 20 of the Family Relations Act, R.S.B.C. 1996, c. 128 (replaced by s. 37 of the FLA) does not adopt the language of “material change of circumstances” as set out in the leading Supreme Court of Canada decision Gordon v. Goertz, [1996] 2 S.C.R. 27 on the best interests of the child, the “material change of circumstances” test still applies. As stated by the Court in Goertz with respect to the threshold for a material change in circumstances at para. 12: Change alone is not enough; the change must have altered the child’s needs or the ability of the parents to meet those needs in a fundamental way ... The question is whether the previous order might have been different had the circumstances now existing prevailed earlier. [14] In making an order respecting guardianship, parenting arrangements or contact with a child, the parties and the court may only consider the best interests of the child, which are set out under s. 37(2) of the FLA. 79 Ongoing conflicts between parents may amount to a material change in circumstances: Laurin v. Martin, [2005] O.T.C. 591 (Ont. S.C.J.); appeal dismissed (2005), 143 A.C.W.S. (3d) 128 [2005 CarswellOnt 5084 (Ont. C.A.)]. 80 In Chin Pang v. Chin Pang, 2013 ONSC 2564 (Ont. S.C.J.), Mr. Jus- tice Price considered that the mother’s repeated breaches of court orders amounted to a material change in circumstances that affected the child’s interests to such a degree to justify varying the order. He identified the framework in paras. 19 and 20: 19 Past decisions of our courts have identified factors the court should consider when asked to vary an order for child custody or access. These include the pre-eminent responsibility of custodial parents to make decisions affecting a child, a child’s need for stability during the turmoil that accompanies separation and divorce, and the need to manage conflict constructively between parents in order to minimize its negative impact on the child. 20 Abela, J.A. in MacGyver v. Richards, (1995), cautioned judges against allowing an access parent to interfere lightly with a custodial parent’s responsibilities, to serve what is alleged to be the best interests of the child. She observed that, because what is in children’s best interests may vary from child to child, and from time to time, and having regard to the difficulty of deciding, objectively, what is most 216 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

likely to be conducive to a child’s having the best opportunity to receive needed care and attention, it is important to minimize the pros- pects for stress and instability. 81 Price J. considered circumstances where parents were in prolonged conflict at para. 24: 24 Murray J., in Jackson v. Jackson, (1995), referred to the damage the parents in that case were doing to their children by their prolonged conflict: As with many parents in high conflict, they purport to wage war for the best interests of their children... The practical reality is that they have no apparent interest in curbing conflict to minimize the potential of harm to their children. 82 At para. 81, Price J. referred to the decision of Corbett J. in De Melo v. Gooding, 2010 ONSC 2271 (Ont. S.C.J.): 81 As Corbett J. noted in De Melo, the threshold requirement for a material change in circumstances is not intended to condemn the parties to a lengthy process of dispute resolution that holds no reasonable prospect of enabling them to resolve their differences: This is not to encourage interminable court attendances, or unending participation in formal dispute resolution outside the court process. There comes a point at which the frequency and intensity of conflict may warrant a change in the overall custody and access regime, in an effort to reduce that conflict. In other words, the failure of the processes established by the parties may, itself, be a material change of circumstances, just as the apparent inability of the parties to work with a specific parenting coordinator could justify changing the coordinator in Litman v. Sherman. [Emphasis added by Price J.]

Dr. Elterman’s Report 83 As noted, I ordered that Dr. Elterman, the parenting coordinator, prepare a report answering the questions referred to in paragraph 11 of these reasons. Dr. Elterman’s report is dated November 21, 2015. 84 Dr. Elterman confirms that he is aware of his duty to assist the Court and to not be an advocate for either party. 85 Dr. Elterman approached the questions by collecting information through interviews of each of the parents. He asked each of them to address the four questions posed. He also spoke to Hannah who was Friedlander v. Claman Gropper J. 217

brought in by each of the parents to meet with Dr. Elterman. He spoke to the school principal at VTT and he observed Hannah in her classroom. 86 At page two of his report, Dr. Elterman observes: What became apparent to me when I started by meeting the parents was the very different narratives provided by the parents and, more saliently, that their perceptions of Hannah’s experience in each home was very different. In general Ms Claman related to me that Hannah was doing poorly at Talmud Torah and was very unhappy socially at the school. She also expressed concern, based on Hannah’s statements, that Mr Friedlander was abusive to the child and that Hannah is unhappy with her father and being at this home. For his part, Mr Friedlander expressed frustration that the child is placed in a position to conform to her mother’s animosity towards himself and pretend to hate being with him and spending time at his home. He said that the child has to say negative things which do not accord with her experiences. 87 The first interview with Hannah was with Ms. Claman on July 15, 2015. During that interview, Hannah told Dr. Elterman that she wanted to be in school in West Vancouver; that she does not want to learn He- brew because “I could get killed for speaking that language”; that she had no friends at VTT and only has friends at school in West Vancouver. Hannah told Dr. Elterman that her father “takes her to activities so he does not have to take care of me” and “he does not want to be with me so much so he puts me in activities”. Hannah described the claimant to Dr. Elterman as having a bad temper and shouting at her. Hannah told Dr. Elterman that her father was taking her to London and Ibiza but she did not want to go. 88 Dr. Elterman met Hannah a second time on August 11, 2015, when she came in with Mr. Friedlander. During that occasion, Hannah told Dr. Elterman that she had an “amazing time” in Ibiza; her father treated her well; he does not get mad a lot and has never yelled at her. She said “he is always nice”. When Dr. Elterman asked her if her father is ever mean she replied: “no, he loves me”. Dr. Elterman asked Hannah about the alternating parenting schedule to which Hannah responded that it is “good”. She said that she is not unhappy at either her mother or her father’s. Dr. Elterman asked Hannah if she wants to be less with her dad and she responded: “no I like it with him, he loves me.” Dr. Elterman asked Hannah about VTT and she said it was “good”. Dr. Elterman pointed out to Hannah that she had said something different when she met with him with her mother present on July 15, 2015. Hannah re- 218 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

sponded “it’s different when I am with mom and dad.” Dr. Elterman asked Hannah if she wanted to change schools and Hannah replied that she does not. 89 Dr. Elterman observes: The stark contrast between how Hannah presented with each parent suggested to me, even initially, that Hannah’s reality is strongly split between what she says and how she behaves in each home and with each parent. 90 Dr. Elterman describes his interviews of Mr. Friedlander and Ms. Claman in relation to the four questions. 91 Dr. Elterman describes Mr. Friedlander’s response at page 3: Eran Friedlander Asked whether he thinks the arrangements are working for Hannah, Mr Friedlander says that Ms Claman makes it difficult for Hannah to have a normal life. Hannah has been at Talmud Torah for 5 years and the child is settled but Ms Claman has tried to unseat and unsettle her there. He says that she creates dissatisfaction in the child concerning whether she like the school, the subjects and the teachers, learning Hebrew and Jewish education. Mr Friedlander says that Ms Claman fights with the school staff in front of Hannah. Hannah needs to have friends and needs to have a normal childhood. He says that Ms Cla- man takes Hannah to the doctor to try document that Hannah is unhappy at the school and has no friends. He says that Ms Claman doesn’t understand that what she is doing is abusive to Hannah. He says that she raises allegations about him that are not true such as sleeping with Hannah, not feeding her, not dressing her properly and yelling at Hannah. He says that he took her 3 times to Europe this year and spends every last minute with her. He says that Ms Claman engages Hannah in this and she tells the family physician that Hannah is anxious that she has to see the psychologist but Ms Cla- man tells Hannah a week ahead of time. 92 In respect of the second question, Mr. Friedlander expressed the view that there should be a change in parenting time and that he would like to have Hannah during the school weeks and that he and the respondent parent on alternate weekends. 93 Regarding question three, Mr. Friedlander expressed the view that it would be in Hannah’s best interest to live primarily with him during the school year. Friedlander v. Claman Gropper J. 219

94 In respect of the fourth question, Hannah’s experience with what is going on in her life, Dr. Elterman provides Mr. Friedlander’s response: He responds that the doctors’ notes suggest that symptoms are reported but this is done to lay the groundwork for later claims. He says that it is evident that the child’s experience is largely how she is different when she goes between her mother and father. He says that she has to live in 2 worlds in order to please her mother and whereas with him she can relax and does not have to pretend that she does not enjoy being at her mother. 95 Dr. Elterman asked Ms. Claman the four questions. 96 In respect of the first question concerning the current parenting arrangements, Ms. Claman told Dr. Elterman: ... that she is concerned that no one should criticize Hannah and that she should have the right to express herself. Ms Claman says that Hannah has clearly said that she doesn’t want to learn Hebrew. I asked Ms Claman whether she thinks the arrangement is working for Hannah. She responds that it is important that Hannah loves her dad and she wants to focus on what is best for her. Hannah says very negative things about her dad and she replies to Hannah that she loved her own father. Hannah complains that her father makes her ride on a bus and he picks her up on Wednesday in the parking lot at the Jewish Community Centre. Hannah complains that her father is always crying. Ms Claman says that Hannah will be 14 or 15 and by that time she won’t want to be with her father. Ms Claman says that Mr Friedlander was so abusive to her and now she sees him doing this to Hannah. She says that Hannah takes the brunt of it and Mr Friedlander feels guilty and then takes her shopping. Ms Claman says that Hannah has always wanted to go to Collingwood School and she complains that a friend of hers at Talmud Torah says that they have to hate Muslims but they don’t hate Muslims. Ms Claman says that there are too many political issues at the school. She says that Hannah wants to be like her brother and sister and her friends at the Hollyburn Country Club. Ms Claman says that if Hannah is not mentally happy she won’t excel in her grades. Hannah has shown her her poetry and she does not mention her father. When she raises this with Hannah, Hannah replies “I don’t want to talk about my dad and you know that”. 97 Ms. Claman advised Dr. Elterman that the current parenting arrangements were not working, putting a strain on Hannah. Dr. Elterman asked Ms. Claman why she believed that the parenting arrangement was not working for Hannah to which the claimant responded: “[Hannah’s] rela- 220 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

tionship with her dad is not ‘organic’, it is ‘staged’ and it is ‘not real’”. Ms. Claman added: ...Mr Friedlander has mood swings and now Hannah imitates him and it’s hard on her. She says that Hannah will say that they don’t paint and they don’t do things together she enjoys. Instead he gives Hannah to friends to have play dates. 98 In response to whether parenting time with each parent should change Ms. Claman responded: ... that Hannah is clearly unhappy. Ms Claman says that Mr Fried- lander has said to the child that if he doesn’t get what he wants then he will go and live in Israel. Ms Claman says that Hannah doesn’t want to go to school at Talmud Torah and doesn’t want to learn He- brew. She says that Hannah has a doodle book and the teacher praised her for doing nothing but doodle. Ms Hannah (sic) feels that Hannah needs to have a better education and Hannah tells her mother that she is not happy there. Hannah tells her that she is wasting her time there. Ms Claman says that she can’t help her with her home- work and can’t connect with her in this way. 99 In respect of whether Hannah should live with one parent during the school year and if so who, Ms. Claman responded: ...that the child says that she is not happy or safe at her dad. Ms Cla- man says that if Mr Friedlander could find out why he is crying and why he yells at Hannah and then apologizes, then maybe they could have a week-on week-off. Ms Claman comments that she did listen to me as the parent coordinator about the issues of the phone and “maybe she does compartmentalize her life”. Ms Claman says that it is fine the way it is as long as she is safe. Hannah needs a mother and father but she is screamed at and comes back to her mother exhausted. Ms Claman says that she herself does not like the school because there are so many issues there and she is worried about her safety there. Ms Claman says that she is not religious and she doesn’t think that it is right to tell people that they are the Chosen People and that they are somehow better than others. Ms Claman says that she does not think that Hannah should have to sing the Israeli national anthem every day when she is falling behind academically. 100 In regard to Hannah’s experience, Ms. Claman responded: ...she does not think a child should have to have so much adversity. She says that she questions when Mr Friedlander will stop and why the two of them just can’t get along. I asked her how much of the litigation is generated by her or by him. She says that all she does is respond to his Applications. Friedlander v. Claman Gropper J. 221

101 Dr. Elterman describes his interview with Hannah. She described her experience at VTT. She described her favourite subject as art. She says that she is not good at Hebrew and finds it boring. She says at lunch and recess she sings or plays by herself. She says she has friends at school and has play dates with some of those friends. Hannah advised Dr. Elterman that she finds it difficult to make friends because “everybody is mean to me”. 102 In response to Hannah’s experience at her mother’s home and at her father’s home, Hannah told Dr. Elterman: I asked Hannah if her mom’s place and dad’s place are very different. She nods and says that at her mom she reads and plays dolls and at her dad she can watch TV. At dad she gets to watch TV for 20 minutes and at mom she can watch for 2 hours. She says that at mom she has tea before bed and her mom gives her healthy snacks. She has her own bedroom at each place and she sleeps in her own bed at each home. I asked if she has travelled a lot with her mother and father, she says that she has been to Palm Springs, London, Ibiza, Israel, Hawaii and Disneyland. She says the most fun place was Palm Springs where she went with her mother and her aunt and uncle. She says she likes going to new places. 103 When Hannah came to see Dr. Elterman with her father, Dr. Elterman says: She told me that she feels pulled in 2 different directions. She says that mom wants her to do and say one thing and dad wants her to do and say how she feels. I asked Hannah when she goes to see the doctors do mom and dad tell her what to say sometimes. Hannah responds that her mom does tell her what to say sometimes. Asked about her dad, Hannah says that he doesn’t but he says “always tell the truth”. I asked Hannah what this is like for her and she says “it feels weird”. She says this is because she doesn’t know which one she should do. She goes on to say “I love them both, I don’t know what I should do”. I asked what does mom want her to say, and she responds “that I don’t like Talmud Torah”. I then asked Hannah if this is how she feels and she responds that it isn’t. I asked Hannah whether she has to say what she doesn’t feel. She responds “uh-huh”. I asked what this is like and she says “it doesn’t feel nice because it makes one of them happy and the other one not”. I asked Hannah what does dad want her to say. She responds that he says “just the truth”. Hannah goes on to say “but so does mom but she just hears things different”. I enquired of Hannah for an example of this. She says “let’s say I went to the park and had cocoa... she 222 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

might not hear it that way”. She goes on to say “when I tell dad he hears it the right way, not different from how I said it”. 104 Hannah related her experience with the doctor. She told the doctor that she did not like VTT. Dr. Elterman asked Hannah whether that was true and Hannah said that it is not. Dr. Elterman asked Hannah why she said that and she responded “[the Dr.] sort of told me what to say.” 105 Hannah described that there are kids at school that she is not allowed to play with because her mother does not like them or her parents. Hannah told Dr. Elterman that her dad does not tell her who she should play with. 106 In relation to what her parents told her Dr. Elterman states: I asked Hannah whether her dad talked to her about what she should tell me and she says that he didn’t. I asked Hannah when she comes with her mom did she tell her what to tell me. Hannah responds “she said to tell you what I told the doctor that we went over”. 107 Dr. Elterman refers to “other information” including his discussion with the principal and head of school at VTT. The principal described Hannah as a happy child at school with lots of friends. The principal described that Hannah’s behaviour is different when she is with each parent. In some ways the principal described Hannah as having “two different personalities”. 108 Dr. Elterman observed Hannah at the school. He saw her interacting with the teacher and other students. He observed her in Hebrew study and describes her as engaged and interacting. He observed that Hannah smiled a lot and did not seem unhappy, in spite of Hannah telling him that she finds the subject of Hebrew the “most boring”. 109 Dr. Elterman provides the following opinions in respect of the questions asked: The first question is whether or not the parenting arrangement currently in place is working for Hannah. My sense of this is that it is not working because Hannah is living in two worlds where she has to present to her mother that she is not happy at school either academically or socially and that she is not happy spending time at her father and that he mistreats her. Hannah has come to believe from the per- ception that she has to behave differently with her mother. I believe that this is stressful for the child as she has developed a schism between these two realities and where she knows the reality of her experience she has to pretend and fabricate and experience. Friedlander v. Claman Gropper J. 223

The second question is whether the parenting time that each party has during the school year should change and if so, how. I believe that Hannah is actually quite happy at the school and that she does not really have the objections to learning Hebrew and learning about Jewish culture that has been portrayed. The school says that they have had difficulty with Ms Claman and that they are at the point where they would ask her not to attend the school as a result of the reported behaviour. Under these circumstances it would seem that to have Ms Claman taking Hannah to school creates pressure on Hannah to conform to her mother’s expectations and also she has apparently witnessed situations between her mother and the school that undermines her confidence in the school staff. The third question which is would it be in Hannah’s best interest to live primarily with one or the other of her parents during the school year and if so, who, is clearly related to the second question of parenting time. In this regard the evidence points to Mr. Fried- lander having Hannah during the school week and Ms Claman seeing Hannah on the weekend. I think that the time could be made up for Ms Claman to have more time with Hannah during the summer vacation but I think that the general division of weekday and weekend is where the information collected would point. To this extent I think that it would be in Hannah’s best interest to live primarily with Mr Friedlander during the school year and with Ms Claman more on the weekend. During the summer I would recommend that Ms Claman have more time if the summer is 10 weeks counting the last week of June and the first week of September, then Mr. Fried- lander would have the last 2 weeks in July and the last 2 weeks before school starts in August going into September until school commencement. The final question put to me is what is Hannah’s experience of what is going on in her life. Hannah suggested to me that she has sometimes been coached before speaking to professionals and that she can say one thing to her mother but it is interpreted differently. I am concerned that if Hannah continues to feel that she has to create a schism between the experiences that she has at her father and her mother and how she reports this to her mother in order to fit with expectations, that this will cause long-lasting emotional problems for her. One can imagine that if Hannah’s experience is different from that which she feels compelled to report and, regardless of what she says she is going to hurt and upset one of the parents, then one has created a no-win situation for the child. Hannah says that she loves them both and wants to hurt neither of them. It does not surprise me that Hannah would say to Ms Claman that she 224 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

does not want to talk about her father but her intention is not that she doesn’t want to talk about him because she does not care for him, but rather she wants to maintain the two solitudes and a schism between the two homes because she feels pulled in two different directions. The splitting of her realities to accord with expectations best characterizes the answer to question 4 and her experience of what is going on in her life. [Emphasis added]

Position of the Parties 110 The claimant maintains that the breaches of the trial orders in and of themselves constitute a material change. The various and numerous breaches have caused psychological damage and distress to Hannah. He points out that both parties are of the view that Hannah is suffering. The claimant says that because of the significant breaches of court orders, the court must step in to protect Hannah. 111 The claimant asserts that Dr. Elterman’s report amply demonstrates that Hannah is struggling. She is suffering psychological damage due to the respondent’s influence and it is “shaking the ground of her existence and challenging her reality”. The claimant says that it is not an insignificant or small point; that what is transpiring for Hannah is of grave concern. The response, the claimant says, is to reduce the amount of time that Hannah spends with her mother. The claimant asserts that there is nothing in the evidence to show that the claimant is not acting in Hannah’s best interests. 112 The respondent, though agreeing that the current joint custody and parenting arrangements are not working, says that there is no material change in circumstances. In spite of the respondent not embracing the decision that Hannah attend VTT, she takes Hannah to VTT and supports her activities there. She ensures that Hannah has an enjoyable experience. 113 The respondent says that the cases relied upon by the claimant show a repeated pattern of a breach of custody arrangements and not “soft or nominal breaches”. The respondent says the child is experiencing some upset but that is not a material change. Hannah does not suffer distress at the respondent’s hands. In any event, Hannah’s experience is not entirely the fault of the respondent. 114 The respondent says that there should be no change in the parenting arrangements; it is time for both parents to change their attitude. Hannah Friedlander v. Claman Gropper J. 225

deserves the input of both parents and there ought to be no change in the parenting arrangements.

Decision Material Change in Circumstances 115 As I stated in my introduction, the court orders that I made on August 7, 2014 were intended to avoid confrontation between these parties and ensure that the joint custody scheme to which they had agreed could be successful. Unfortunately, the respondent’s refusal to follow the terms of the order has not only led me to the conclusion that she is in contempt of court, but also that the joint parenting scheme which the parties contemplated is not workable. The breaches of court orders undermined the parenting plan which my order envisioned. 116 I have determined that each breach is a contempt of court. The particular breaches, including the lack of cooperation in appointing, retaining and seeing the parenting coordinator, not providing special expense payments on a monthly basis, the continuing disparaging of the claimant and his business, all are counter to the best interests of the child. 117 I agree with the Ontario authorities finding that a party in contempt of court represents a material change in circumstance, such that a variance of the custody and parenting scheme can be considered. 118 In this case, I am also assisted by Dr. Elterman’s report. He is une- quivocal that the joint custody regime is having a negative effect on the child. This eight year old is required to navigate a perilous course between her father and her mother. Her mother challenges every aspect of the child’s life: her father, her school, her friends, and her security. Dr. Elterman is clear that the best interests of the child are served if the present joint custody scheme does not continue, and that if it does, there will be immediate and long-term repercussions for Hannah. 119 I have no doubt that since my order of August 7, 2014 there has been a material change in circumstances, all of which are having a destructive effect on the child’s health and well-being.

Section 37(2) Factors 120 Having found there is a material change in circumstances, I must un- dertake a fresh inquiry of the factors listed in section 37(2) of the Family Law Act. 226 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

121 Applying the relevant factors outlined in s. 37(2), I find that the child’s best interests will be served by granting the claimant sole custody and revising the parenting scheme whereby Hannah will reside with the claimant during the school week: a) the child’s health and emotional well-being: I accept the evidence of Dr. Elterman who observed the child at VTT and found her to be happy, engaged and interacting with her teacher and her peers. This is consistent with the evidence that I noted in my reasons for judgment of August 7, 2014, that Hannah was observed as being happy, a joyous learner, having many friends, and actively participating in school activities. Dr. Elterman’s observation is that this is contrary to what Hannah says in her mother’s presence and contrary to what the respondent relates about Hannah’s school experience. I find that Hannah’s positive experience at school and her having to describe it negatively to the respondent is a source of stress to Hannah and as Dr. Elterman says: “she has developed a schism between these two realities and where she knows the reality of her experience she has to pretend and fabricate and experience.” Continuing this is not consistent with Hannah’s health and emotional well-being. b) the child’s views, unless it would be appropriate to consider them: the child is eight years old and I consider that she is too young to have me consider her views. c) the nature and strength of the relationships between the child and significant persons in the child’s life: I found that the child was significantly bonded to her parents and others and she remains so. However, her relationship with the respondent during the school year is having a negative effect. d) the history of the child’s care: this is not a change since my earlier decision. Both parties have contributed to the child’s care throughout her life. e) the child’s need for stability given the child’s age and stage of development: it is this factor which I must emphasize in light of Dr. Elterman’s view that the joint custody regime is undermining Hannah’s need for stability given her age and stage of development. In order to accomplish a more stable environment for Hannah, I find that the change in custody and parenting time is critical. Friedlander v. Claman Gropper J. 227

f) the ability of each person who is a guardian... or who has or seeks parental responsibility and parenting time with the child, to exercise his or her responsibilities: in my August 2014 reasons I expressed my view about Ms. Claman and her attempt to manipulate the child and that it was of grave concern. Unfortunately, my concerns have been amplified. I accept Dr. Elterman’s opinion that the parties cannot exercise joint custody during the school year. g) the appropriateness of an arrangement that would require the child’s guardians to cooperate on the issues affecting the child, including whether requiring cooperation would increase any risk to the safety, security or well-being of the child: I have found that the respondent is unable to cooperate in the arrangement of joint custody and I am unable to find that future cooperation is likely. In light of Dr. Elterman’s report, I find that continuing the joint custody and the current parenting regime increases the risks to the safety, security and well-being of the child. h) any civil or criminal proceeding relevant to the child’s safety, security or well-being: having found that the respondent is in breach of several court orders, I consider that continuing the current custody and parenting regime is negatively affecting the child’s safety, security and well-being. 122 Section 37(3) provides: an ... order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being. 123 I find that continuing the current joint custody and parenting regime is not in the best interests of the child because she is not protected to the greatest extent possible in respect of her psychological and emotional safety, security and well-being. 124 It is for these reasons that I order paragraph 2 of the order of August 7, 2014 be varied and that sole custody be granted to the claimant. 125 The claimant seeks an order that paragraphs 2, 3, and 17 of the Au- gust 7, 2014 order be varied to grant Mr. Friedlander final decision-making authority in respect of all the parenting responsibilities listed in s. 41 of the Family Law Act, including: (a) making day-to-day decisions affecting the child and having day- to-day care, control and supervision of the child; (b) making decisions respecting where the child will reside; 228 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

(c) making decisions respecting with whom the child will live and associate; (d) making decisions respecting the child’s education and participation in extracurricular activities, including the nature, extent and location; (e) making decisions respecting the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child’s aboriginal identity; (f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child; (g) applying for a passport, licence, permit, benefit, privilege or other thing for the child; (h) giving, refusing or withdrawing consent for the child, if consent is required; (i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive; (j) requesting and receiving from third parties health, education or other information respecting the child; (k) subject to any applicable provincial legislation, (i) starting, defending, compromising or settling any proceeding relating to the child, and (ii) identifying, advancing and protecting the child’s legal and financial interests; (l) exercising any other responsibilities reasonably necessary to nur- ture the child’s development. 126 I am convinced that any regime that requires the cooperation of the respondent to make decisions is not workable. In light of my findings in respect of the respondent’s breach of court orders, Dr. Elterman’s opinion about Hannah’s security and well-being and my decision to grant sole custody to the claimant, I order that the claimant must have the final decision-making authority in respect of all of the parenting responsibilities listed in s. 41. 127 I vary paragraph 3 of the August 7, 2014 order to provide that Hannah be in the claimant’s care during the school week. The respondent’s parenting time will be exercised alternating weekends from after Friedlander v. Claman Gropper J. 229

school on Friday until before school on Monday and will include the holiday Monday, if that falls during her parenting time. 128 Dr. Elterman suggests a change in the parenting time in respect of weekends and summer holidays to reflect the change in parenting time during the school weeks. I am not convinced that there is a good reason to change the weekend parenting time or the summer parenting time or that it would be in Hannah’s best interests. I am concerned that Hannah’s spending every weekend with the respondent may undermine the variation that I am putting in place. Further, there is a difference in the quality of the time a parent spends with the child during a school week and on a weekend. I do not consider it reasonable to deny the claimant alternate weekend time with Hannah. Further, I do not consider a change in the summer schedule is justified. It does not, in my view, properly address the factors set out in s. 37(2). 129 My remaining concern is that the pick-up and drop-off of Hannah is to take place at VTT. Neither party made submissions in respect of whether this should be varied. As that is the case, I will not do so at this time. The parties may agree to an alternative pick-up and drop-off point or, if they are unable to do so, I explicitly provide Dr. Elterman with the authority to determine a pick-up and drop-off point that is not at VTT. 130 The parties have leave to appear or make written submissions in respect of any matters arising out of these reasons.

Costs 131 As noted by Mr. Justice Schultes in Pringle v. Pringle, 2009 BCSC 1446 (B.C. S.C.), a finding of contempt of court orders is a basis for awarding special costs. The claimant is therefore entitled to special costs of this application. Motion granted. 230 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

[Indexed as: Ahmed v. Hawthorne] Syed Mohammed Ahmed, Applicant and Juanita Beatrice Hawthorne, Respondent Ontario Superior Court of Justice Docket: FS-15-402837 2016 ONSC 571 F.L. Myers J. Heard: January 21, 2016 Judgment: January 22, 2016 Family law –––– Divorce — Practice and procedure — Setting aside decree or judgment –––– Validity of divorce order — Parties married in 2006 and lived together in Toronto until September 2015, when wife drove husband to airport so that he could fly to Pakistan to care for ailing father — In May 2015, husband issued application for divorce, claiming that parties had separated in August 2013 — Order for divorce was made on October 22, 2015 — Wife moved to set aside order for divorce on basis that husband committed fraud on court — Mo- tion granted — Until husband left to travel to Pakistan to care for his ailing father, he lived together with wife as spouses at their apartment — They never lived separate or apart — Affidavit from third party swearing that husband had lived separate and apart from wife was fraudulent — Husband’s application was never served on wife — Husband deliberately misled judge who granted divorce order as to existence of grounds for divorce — Prospect of re-marriage by husband in Pakistan before divorce order was made effective was possibility and not fact — There was no real prejudice to wife’s legal rights, as she did not have realistic property claims — Court’s process could not be so vulnerable to deliberate misuse and provide no remedy — Divorce judgment was set aside — Or- der was obtained by fraud and without notice — Wife was to provide her answer and other documents. Cases considered by F.L. Myers J.: Chitel v. Rothbart (1982), 39 O.R. (2d) 513, 30 C.P.C. 205, 69 C.P.R. (2d) 62, 141 D.L.R. (3d) 268, 1982 CarswellOnt 508, [1982] O.J. No. 3540 (Ont. C.A.) — referred to Flower v. Lloyd (1879), 10 Ch. D. 327, 36 L.T.R. 444 (Eng. C.A.) — followed Hitsman v. Hitsman (1970), [1970] 2 O.R. 573, 2 R.F.L. 276, 11 D.L.R. (3d) 450, 1970 CarswellOnt 128, [1970] O.J. No. 1799 (Ont. H.C.) — considered Meek v. Fleming (1961), [1961] 2 Q.B. 366, [1961] 3 All E.R. 148 (Eng. C.A.) — considered Ahmed v. Hawthorne F.L. Myers J. 231

Statutes considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Generally — referred to Family Law Act, R.S.O. 1990, c. F.3 Generally — referred to Rules considered: Family Law Rules, O. Reg. 114/99 R. 25(14) — considered

MOTION by wife for order to set aside order for divorce.

Juanita B. Hawthorne, for herself

F.L. Myers J.:

1 Juanita Beatrice Hawthorne moves to set aside the order for divorce made by Paisley J. dated October 22, 2105. The order was made on a Rule 14B written motion by the husband Mr. Ahmed. Ms. Hawthorne asserts that her husband committed a fraud on the court. She says that he sought judgment without serving her with the application and without having any grounds for divorce. 2 Ms. Hawthorne also testified on information and belief that Mr Ah- med very quickly remarried in Pakistan. Ms. Hawthorne learned of her divorce and Mr. Ahmed’s re-marriage on October 25, 2015. Justice Pais- ley’s order contains the usual provision deferring the effectiveness of the divorce for 31 days. Accordingly, even if the order was properly made, it appears that Mr. Ahmed was not yet divorced under Canadian law at the time that he re-married. 3 Rule 25(14) allows the court to change an order that was obtained by fraud or one that was obtained without notice. Both grounds apply here.

The Facts 4 The parties married on October 7, 2006. They lived together, in To- ronto, at 310-83 Parkwood Village Drive until September 4, 2015. On that day, Ms. Hawthorne drove Mr. Ahmed to the airport so he could fly home to Pakistan to care for his ailing father. He has not returned. 5 Ms. Hawthorne testified that Mr. Ahmed has been trying to obtain his Canadian citizenship for several years. He learned in early 2015 that his 232 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

citizenship papers would be coming through shortly. He became a citizen of Canada in June, 2015. 6 On May 21, 2015, Mr. Ahmed issued his application for divorce. In it, he claims that he and Ms. Hawthorne separated in August, 2013. There are no children of the marriage. 7 The parties do not own a home. Mr. Ahmed told Ms. Hawthorne that he worked for cash at a Tim Horton’s store. She has been on disability benefits for some time. Accordingly there are no property issues and spousal support is not a practical issue. 8 By affidavit of service sworn October 14, 2015, Waheza Sheik Has- sen testified that on May 27, 2015, she served the application for divorce and a blank answer form on Ms. Hawthorne at Ms. Hawthorne’s apartment on Parkwood Village Drive. 9 Waheza Sheik Hassen and her husband are friends of Mr. Ahmed. 10 Ms. Sheik Hassen’s affidavit of service was sworn before lawyer Mbong Elvira Akinyemi on October 14, 2015. On that same date, Mr. Ahmed’s affidavit for divorce was also sworn before Ms Akinyemi. Mr. Ahmed swore in his affidavit for divorce that the parties have been separated for at least one year. He swore that they separated in August, 2013. Mr. Ahmed’s address in his application is the parties’ apartment on Parkwood Village Drive. In his affidavit for divorce, he swears that he lives in Mississauga and that his address is 3255 Stoney Crescent. That is the address of Ms. Sheik Hassen and her husband. 11 There are two problems with Mr. Ahmed’s affidavit for divorce. First, according to the evidence of Ms. Hawthorne, until he left to travel to Pakistan to care for his ailing father on September 4, 2015, Mr. Ahmed and she live together as spouses at their apartment. They never lived separate or apart. In addition, on October 14, 2015, the date that Mr. Ahmed swore the affidavit for divorce before lawyer Akinyemi in Toronto, Mr. Ahmed remained in Pakistan. 12 Ms. Sheik Hassen testified that she despite her sworn affidavit of service, she did not serve any papers on Ms. Hawthorne on May 27, 2015 or otherwise. She denied ever attending at Ms. Akinyemi’s office or swearing the affidavit of service before the lawyer. She denied ever having seen or met Ms. Akinyemi before seeing her in court at this hearing. Rather, she says that her friend Mr. Ahmed asked her to sign a document to show that she knew him and that he wanted a divorce so that he could go to Pakistan to care for his ailing father. She says that she signed the Ahmed v. Hawthorne F.L. Myers J. 233

document without reading it and returned it to Mr. Ahmed. She also said that Mr. Ahmed never lived at her address. 13 Ms. Sheik Hassen also testified that since being served with a summons to witness in this matter, she has spoken to Mr. Ahmed in Pakistan. She says that he knows that this proceeding has been brought by Ms. Hawthorne to challenge the divorce. She says that he cannot attend court because he is caring for his ailing father. She also says that does not know if he has remarried. 14 Lawyer Mbong Elvira Akinyemi testified under summons to witness as well. She says that she has a very busy law practice. People drop in all the time to have her sign or witness documents. She would not be able to recognize them again if she saw them. She says that on October 14, 2015, two people, a man and a woman, attended her office and asked her to swear Mr. Ahmed’s affidavit for divorce and Ms. Sheik Hassen’s affidavit of service. Ms. Akinyemi took copies of their Ontario Drivers’ Li- censes. She produced a copy of Ms. Sheik Hassen’s license and Mr. Ah- med’s license. The photocopies are physically quite different. Ms. Sheik Hassen’s license is enlarged and is at the top of a page. The copy of Mr. Ahmed’s license is small, very dark, and is displayed sideways at the bottom of a page. It does not look like they were copied by the same person at the same time. Ms. Akinyemi says that she saw original li- censes and looked at the pictures at the time. But she could not say today that it was Ms. Sheik Hassen and Mr. Ahmed who appeared before her that day in her office. She has a busy practice. 15 Finally, Ms. Hawthorne testified that she recently received a telephone call from a lady whose call-displayed telephone number was from Pakistan. She identified herself as Mr. Ahmed’s cousin. She asked Ms. Hawthorne if she still loves Mr. Ahmed. Ms. Hawthorne said that she does and she asked the caller if she loved Mr. Ahmed. She said that she does. She also said that she and Mr. Ahmed had planned for several years that as soon as he obtained his citizenship, he would come home to Pakistan for her and her daughter.

Analysis 16 I find that Mr. Ahmed did not serve his application for divorce on Ms. Hawthorne. Ms. Sheik Hassen’s affidavit was fraudulently obtained and submitted to the court. She chose to deny swearing it rather than admit- ting to swearing a false oath. In either case, Mr. Ahmed deliberately misled Paisley J. as to service and as to the existence of grounds for divorce. 234 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

The divorce order could not have been granted had Mr. Ahmed not mis- represented the truth. 17 But that does not end the matter. The divorce is a judgment in rem. That means that it creates a legal status. It is not like typical judgments that just bind one person to pay money to another. Those judgments are personal remedies between the parties. By contrast, a divorce creates a status that can be relied upon by anyone in the world. It is like a marriage or a bankruptcy order. Once a divorce is given, “a new state of fact exists, the parties have a fresh status, and can contract fresh marriages.” Hitsman v. Hitsman [1970 CarswellOnt 128 (Ont. H.C.)] 1970 CanLII 380. Courts are very reluctant to re-open in rem judgments especially where the status created may have been relied upon by third parties. 18 I have to consider the fact that if I set aside this divorce, I might be retroactively rendering void the marriage of a lady in Pakistan to Mr. Ahmed. Mind you, I do not know if that is the case. It may already be void since it appears that Mr. Ahmed re-married before the divorce order was effective. Moreover, Pakistan may not require a divorce in Canada before allowing its residents to marry. Ms. Sheik Hassen would not admit if she knew that Mr. Ahmed had married. Mr. Ahmed has chosen to refrain from submitting evidence or participating in this proceeding. I have no sense of the reliability of the information provided to Ms. Haw- thorne about Mr. Ahmed’s re-marriage. Accordingly, I regard the prospect of re-marriage by Mr. Ahmed as a possibility rather than as a fact. 19 Although Ms. Hawthorne has been hurt and embarrassed by Mr. Ah- med’s actions, I do not find there to be any real prejudice to her legal rights. The right to bring some property claims under the Family Law Act, RSO 1990, c F.3 can be lost on divorce. But Ms. Hawthorne does not seem to have any realistic property claims. The status of being married is also a fundamentally important element of one’s personhood that has been lost by Ms. Hawthorne. However, under the Divorce Act, RSC 1985, c.3 (2nd Supp) a marriage can be terminated as of right simply by one spouse separating himself or herself from the other for one year. That is, despite the importance of the state of being married to Ms. Haw- thorne, she was always susceptible to that state being ended by the unilateral action of Mr. Ahmed. What he appears to have done is to bring the end about sooner than he might otherwise have been able to do lawfully. 20 I asked Ms. Hawthorne why she would want to reinstate her marriage at this point. She responded firstly that she did not think that Canada Ahmed v. Hawthorne F.L. Myers J. 235

should have to receive Mr. Ahmed’s new wife and her daughter. But that is not a decision for Ms. Hawthorne or for this court. Her other stated reason for seeking to annul the divorce was to require her husband to face her and “do it right.” 21 Courts’ reluctance to re-open matters that have been determined is a longstanding principle. As Lord Justice James stated in Flower v. Lloyd (1879), 10 Ch. D. 327 (Eng. C.A.), at pp. 333-4: Perjuries, falsehoods, frauds, when detected, must be punished and punished severely; but, in their desire to prevent parties litigant from obtaining any benefit from such foul means, the Court must not forget the evils which may arise from opening such new sources of litigation, amongst such evils not the least being that it would be certain to multiply indefinitely the mass of those very perjuries, falsehoods, and frauds. 22 Ultimately however, the law sides with honesty over administrative convenience. In Meek v. Fleming, [1961] 3 All E.R. 148 (Eng. C.A.), Lord Justice Holroyd Pearce wrote at p. 154: Where a party deliberately misleads the court in a material matter, and that deception has probably tipped the scale in his favour (or even, as I think, where it may reasonably have done so) it would be wrong to allow him to retain the judgment thus unfairly procured. Finis litium is a desirable object, but it must not be sought by so great a sacrifice of justice which is and must remain the supreme object. Moreover, to allow the victor to keep the spoils so unworthily obtained would be an encouragement to such behaviour, and do even greater harm than the multiplication of trials. In every case it must be a question of degree, weighing one principle against the other. 23 In the Hitsman decision mentioned above, Wright J. determined that a mistake made by lawyers was not reason enough to set aside a divorce. He stressed that the judgment for divorce terminates the status of marriage and must therefore be final. However, even in doubting the power of a court to re-open a judgment for divorce, His Lordship noted that there is an exception for fraud. 24 This is especially the case where a party’s conduct includes failing to serve the party opposite and coming to court, effectively, on a without notice basis. Case law governing the obligations on parties who come to court without notice establish a very high standard of transparency and accountability. Parties who seek relief without notice must make full and frank disclosure of all material facts. The failure to do so can itself lead to the order made being set aside even where the moving party estab- 236 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

lishes that he ultimately had good grounds for the relief sought. Chitel v. Rothbart [1982 CarswellOnt 508 (Ont. C.A.)] 1982 CanLII 1956. 25 In my view, the order of Paisley J. must be set aside. The court’s process cannot be so vulnerable to deliberate misuse and provide no remedy. Were it otherwise, we would be inviting people to defraud their spouses and the court to obtain a quick divorce with no grounds and no justice. 26 I therefore set aside the divorce order of this court dated October 22, 2105 in this application. Ms. Hawthorne shall deliver her Answer and other required documents within 45 days. Ms. Sheik Hassen admitted in court to having received the applicant’s telephone number in Pakistan. The court orders Ms. Sheik Hassen to provide all contact information that she has for the applicant and his brother to Ms. Hawthorne forthwith. Ms. Hawthorne shall serve a copy of this order on Ms. Sheik Hassen by regular mail. Motion granted. Ontario (Director, FRO) v. Adema 237

[Indexed as: Ontario (Director, Family Responsibility Office) v. Adema] The Director, Family Responsibility Office for the Benefit of Emma Camposano, Applicant and Dean Randall Adema, Respondent The Director of the Family Responsibility Office for the Benefit of Demetra Adema, Applicant and Dean Randall Adema, Respondent Ontario Court of Justice Docket: FO-08-43776, FO-14-72177 2016 ONCJ 37 S.B. Sherr J. Heard: January 18, 2016 Judgment: January 21, 2016 Family law –––– Support — Child support under federal and provincial guidelines — Enforcement of award — General principles –––– Committal order — Father owed arrears of support in amount of $15,073.30 for 22-year-old child with C — Father owed arrears of support in amount of $19,462.99 for two children with A — Father had not voluntarily paid any child support since default proceeding was started — Director of Family Responsibility Office brought application for default orders that father be imprisoned for 90 days in each of two cases, or until such time as he paid all outstanding child support arrears — Application granted — Default orders were granted providing for immediate committal of father for 75 days in both cases or until $3,500 in arrears was paid in each case — Father was also required to pay $2,500 towards support arrears in January and July of each year until they were repaid — Father had dug himself into financial hole and had nominal assets — In addition to arrears, father owed amount of $50,000 to Canada Revenue Agency — Father did not have ability to pay entire arrears owing at once — However, father did not rebut presumption that he could afford to pay some portion of arrears immediately, that lump sum payments could be paid periodically towards arrears and that he could pay ongoing support accruals in A’s case — Father was not credible witness, had not acted in good faith, and through his actions had shown disdain for family court proceedings — Father provided no valid justification for his poor payment history, presented no plan to pay arrears and gave no indication that he would voluntarily make any payments — Father presented as aggrieved that his support obligations were being enforced — Less aggressive enforcement options other than imprisonment had failed — Father was family law lawyer and knew 238 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

consequences of failure to pay — Message needed to be sent to father that child support orders for his children mattered and would be enforced. Cases considered by S.B. Sherr J.: Fischer v. Ontario (Director, Family Responsibility Office) (2008), 2008 ONCA 825, 2008 CarswellOnt 7447, 59 R.F.L. (6th) 237, (sub nom. Fischer v. Ontario (Family Responsibility Office)) 92 O.R. (3d) 721, (sub nom. Fischer null. Family Responsibility Office (Ont.)) 244 O.A.C. 213, [2008] O.J. No. 4922 (Ont. C.A.) — referred to Labrash v. Labrash (2002), 2002 CarswellOnt 90, [2002] O.J. No. 140 (Ont. C.J.) — referred to Ontario (Director, Family Responsibility Office) v. Carney (2004), 2004 ONCJ 11, 2004 CarswellOnt 1480, [2004] O.J. No. 1541 (Ont. C.J.) — referred to Ontario (Director, Family Responsibility Office) v. De Francesco (2012), [2012] O.J. No. 6338, 2012 ONCJ 819 (Ont. C.J.) — considered Ontario (Director, Family Responsibility Office) v. Kilpatrick (2008), 2008 CarswellOnt 5772, 60 R.F.L. (6th) 435, [2008] O.J. No. 3826 (Ont. S.C.J.) — referred to Saunders v. Saunders (1987), 10 R.F.L. (3d) 284, 1987 CarswellOnt 241, [1987] O.J. No. 1578 (Ont. Dist. Ct.) — referred to Statutes considered: Family Law Act, R.S.O. 1990, c. F.3 s. 35 — considered Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 s. 41 — considered s. 41(9) — considered s. 41(10) — considered s. 41(10)(i) — considered s. 41(11) — considered s. 41(17) — considered Rules considered: Family Law Rules, O. Reg. 114/99 R. 30 — considered

APPLICATION by Director of Family Responsibility Office for default orders that father be imprisoned for 90 days in each of two cases, or until such time as he paid all outstanding child support arrears.

Diane Gillies, for Applicant Respondent, for herself Ontario (Director, FRO) v. Adema S.B. Sherr J. 239

S.B. Sherr J. (orally): Part One — Introduction 1 On January 18, 2016, the court conducted default hearings in these two cases (the Camposano case and the Adema case). 2 The parties agreed that the cases should be heard together as the respondent’s (the payor) ability to pay child support arrears was the central issue in both cases. 3 The payor was permitted to file financial statements (sworn on Janu- ary 18, 2015) and copies of his income tax returns on the date of the hearing. 4 The payor also asked for permission at the hearing to give oral evidence. This was opposed by the applicant (the Director). The Director made a compelling argument in support of its position. The payor had not filed a Dispute or affidavit material in either case, despite having been served with the Notices of Default Hearings in April of 2015 and having been being granted several extensions of time by the court to file material. His financial disclosure was inadequate and delivered late. He is a family law lawyer, who should be aware of the importance of filing comprehensive financial information and affidavit evidence in a timely manner. 5 However, given the seriousness of the relief sought by the Director (immediate committal), the court wanted to ensure that all relevant evidence was before it. The payor was permitted to give oral evidence. The Director was given the opportunity to hold the matter down or adjourn the hearing after the payor testified. The Director chose to proceed with its cross-examination of the payor and the hearing was completed. 6 The Director seeks default orders that the payor be imprisoned for 90 days in each case, or until such time as he pays all of the outstanding child support arrears. It also seeks an order that the payor be jailed for 3 days for each payment in default for ongoing support accruals in the Adema case. 7 The payor claims that he does not have the ability to comply with the existing court order for child support in the Adema case or to pay the outstanding support arrears in both cases at this time.

Part Two — The Camposano case 8 The payor is the father of a 22-year-old child in the Camposano case. 240 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

9 The payor and Ms. Camposano entered into a paternity agreement on March 15, 2001, requiring the payor to pay child support of $400 per month, based on an annual income of $46,500. 10 Ms. Camposano filed the agreement with the court on February 18, 2008 in accordance with section 35 of the Family Law Act. 11 The payor did not voluntarily make any support payments after the agreement was filed with the court. Some minor amounts were diverted from federal sources (such as HST refunds). 12 Pursuant to the paternity agreement, the child ceased to be entitled to support as of April 8, 2011. The Director adjusted its records in accordance with this agreement. The Director is only enforcing support arrears accumulated up until April 8, 2011. 13 The payor is presently $15,073.30 in arrears of support. 14 The payor has never moved to change this agreement or to seek repayment terms for the outstanding arrears. 15 The Director issued its Notice of Default Hearing in this court on March 9, 2015. 16 The payor was served on April 15, 2015. 17 On May 12, 2015, the parties consented to a temporary default order by Justice Carolyn Jones. The order required the payor to commence a motion to change support before the next court date and to serve and file before the next court date: a) A sworn financial statement and default dispute. b) His 2012 to 2014 income tax returns and notices of assessment. c) Proof of all periods that he was in receipt of employment insurance or social assistance since 2011. 18 The case returned to court on June 23, 2015. The payor had provided his income tax returns from 2011 to 2013, but nothing further. The Di- rector agreed to adjourn the cases until August 25, 2015, to give the payor the opportunity to comply with the balance of the court order. 19 No further disclosure was provided prior to August 25, 2015 and the Director agreed to another adjournment to give the payor the opportunity to comply with the court order made on May 12, 2015. The payor did not appear on the return date of November 25, 2015. Justice Jones granted an adjournment until January 5, 2016, to permit the payor another opportunity to attend. The payor had still not filed any further financial disclosure. Ontario (Director, FRO) v. Adema S.B. Sherr J. 241

20 The payor then brought a Form 14B motion, on January 4, 2016, seeking to adjourn the default hearing due to a scheduled dental procedure. The motion was opposed by the Director. Justice Jones reluctantly (due to the lengthy delay and prior indulgences given to the payor), granted the adjournment peremptory on the payor. 21 The payor has not made any voluntary payments towards the support arrears since the default proceeding was started.

Part Three — The Adema case 22 The payor is the father of two children in the Adema case. These children continue to be eligible for support. 23 On July 5, 2007, Justice Linhares de Sousa of the Superior Court of Justice (Family Law Branch) in Ottawa made a final order that the payor pay Ms. Adema child support of $800 per month, based on his income of $53,100 per annum. 24 The payor did not appeal this order. He has never moved to change it. 25 Ms. Adema did not file the order for enforcement with the Director until November 1, 2013. She did not claim any arrears owing at that time. 26 The payor has not made a voluntary support payment since the order was filed with the Director. Some amounts have been diverted from federal sources. 27 The payor is $19,462.99 in arrears in the Adema case. 28 The Director issued its Notice of Default Hearing on March 9, 2015. The payor was served on April 15, 2015. 29 The court appearances in the Adema case have mirrored those set out in the Camposano case. This includes the order for the payor to provide financial disclosure, file a Dispute to the Notice of Default Hearing and requiring him to bring a motion to change. 30 The payor has not voluntarily paid any child support since the default proceeding was started.

Part Four — The payor’s evidence 31 The payor is 50 years old. 32 The payor was called to the Bar as a lawyer in February of 1993. He testified that he operated his own law practice for about a year and a half. 242 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

He then married, stopped practising, and moved to Greece for about one year. 33 The payor deposed that he returned to Ottawa in 1997 and operated his own law practice from then until 2006. He practised family, criminal and civil law. It is unclear what the payor did from 2006 to 2008, although his annual income was fixed at $53,100 on July 7, 2007 in the Adema case. 34 The payor said that he did not practise law from 2008 to 2010. He attempted to support himself as an actor and performed in dinner theatre. 35 In 2010, the payor said that he went to Korea for a few months to teach English, but this didn’t work out. 36 The payor said that he practised law in Toronto from January to April of 2011 as an associate at a law firm. This too, he said, did not work out. 37 The payor deposed that he went on welfare in 2012. 38 The payor testified that he worked at a law firm as an associate in Toronto from October of 2012 until April of 2014. He said that he left the firm to start his own practice. He has been operating his practice, primarily in family and civil litigation law, since then. 39 The payor testified that he works from a home office and occasionally rents office space to meet with clients. He presently lives with his girlfriend who occasionally helps him with the administration of his practice. He has no other employees. 40 The payor filed his income tax returns for 2011 to 2014. He did not file any notices of assessment. The payor did not provide any documentation supporting the revenues or expenses contained in his Statements of Business or Professional Activities, attached as schedules to his returns for 2013 and 2014. 41 The payor’s line 150 income in his 2011 income tax return was $19,627. 42 The payor’s line 150 income in his 2012 income tax return was $12,929. 43 The payor reported gross business income of $68,045 in 2013 and net business income of $31,354. 44 The payor reported gross business income of $40,322 in 2014 and net business income of $19,070. 45 The payor deposed that his gross business income for 2015 was $45,118 and his net business income was $22,538. Ontario (Director, FRO) v. Adema S.B. Sherr J. 243

46 The payor deposed that he has assets of $239 and that he owes Reve- nue Canada about $50,000. He has not paid any taxes (including quar- terly instalments) since at least 2013. 47 The payor deposed that his girlfriend earns $30,000 per year as a bank teller. He provided no documentary evidence of her income. He said that she does not contribute to household expenses since she needs to make payments for a property she owns in Brazil and is supporting family in Brazil. 48 The payor deposed that his driver’s licence was suspended by the Di- rector on November 4, 2013. He also said that his passport has been suspended. 49 The payor testified that he was surprised that the Director considered the enforcement of the Camposano order “an important thing” when the child is not in any need and she was financially well taken care of by Ms. Camposano. He said that he was trying, without success, to work out a financial arrangement with Ms. Camposano. The payor said that “he has a good relationship with Ms. Camposano when romance is involved and when not, it is more difficult”. 50 The payor also felt that his children in the Adema case have been well supported financially by Ms. Adema. He said that Ms. Adema has a Master’s Degree in Business Administration and he has no doubt that she earns over $100,000 per annum. He added that she is now living with a roofer “who earns a lot”. He said that there was no indication that his children required anything more. 51 The payor deposed that he did not start a motion to change the Adema order because it would be financially impossible for him to go to Ottawa to do this. 52 The payor advised the court that he has a Master’s Degree in Spanish Literature and he can represent members of the Hispanic community.

Part Five — Legal considerations 53 The current statutory scheme governing default hearings is found in section 41 of the Family Responsibility and Support Arrears Enforce- ment Act (the Act) and rule 30 of the Family Law Rules. The Director may initiate the default proceeding. The Director prepares a statement of arrears. The payor files a financial statement and, if so inclined, a default dispute. The court may hear oral testimony, direct the production of other relevant documentation and add parties to the default proceedings. See: 244 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

Fischer v. Ontario (Director, Family Responsibility Office), 2008 ONCA 825 (Ont. C.A.), paragraph 17. 54 At the hearing, the amount of arrears owed and the payor’s ability to pay are the central issues. Subsection 41 (9) of the Act puts the onus on the payor, as follows: Presumptions at hearing (9) At the default hearing, unless the contrary is shown, the payor shall be presumed to have the ability to pay the arrears and to make subsequent payments under the order, and the statement of arrears prepared and served by the Director shall be presumed to be correct as to arrears accruing while the order is filed in the Director’s office. 55 Subsection 41 (10) of the Act sets out the powers of the court on a default hearing as follows: Powers of court (10) The court may, unless it is satisfied that the payor is unable for valid reasons to pay the arrears or to make subsequent payments under the order, order that the payor, (a) pay all or part of the arrears by such periodic or lump sum payments as the court considers just, but an order for partial payment does not rescind any unpaid arrears; (b) discharge the arrears in full by a specified date; (c) comply with the order to the extent of the payor’s ability to pay; (d) make a motion to change the support order; (e) provide security in such form as the court directs for the arrears and subsequent payment; (f) report periodically to the court, the Director or a person specified in the order; (g) provide to the court, the Director or a person specified in the order particulars of any future change of address or employment as soon as they occur; (h) be imprisoned continuously or intermittently until the period specified in the order, which shall not be more than 180 days, has expired, or until the arrears are paid, whichever is sooner; and (i) on default in any payment ordered under this subsection, be imprisoned continuously or intermittently until the period specified in the order, which shall not be Ontario (Director, FRO) v. Adema S.B. Sherr J. 245

more than 180 days, has expired, or until the payment is made, whichever is sooner. 56 Subsection 41 (11) of the Act states: No effect on accruing of arrears or other means of enforcement (11) An order under subsection (10) does not affect the accruing of arrears, nor does it limit or otherwise affect any other means of enforcing the support order. 57 Subsection 41 (17) of the Act reads: Imprisonment does not discharge arrears (17) Imprisonment of a payor under clause (10) (h) or (i) does not discharge arrears under an order. 58 At a default hearing, the payor must show an inability to pay due to valid reasons. A valid reason is an event over which the payor has no control which renders the payor totally without assets or income with which to meet his or her obligations, such as disabling illness or involun- tary unemployment. See: Ontario (Ontario (Director, Family Responsibility Office) v. Carney, 2004 ONCJ 11 (Ont. C.J.). The payor must also show that he or she has accepted their responsibilities and placed the child’s interests over their own and has provided frank disclosure to the court. See: Ontario: (Labrash v. Labrash, 2002 CarswellOnt 90 (Ont. C.J.). 59 In Ontario (Director, Family Responsibility Office) v. De Francesco, [2012] O.J. No. 6338 (Ont. C.J.), Justice Carolyn Jones further explores the meaning of “valid reason” under section 41 (10) as follows at paragraph 21 of her decision: 21 Valid reasons, within the meaning of s. 41(10) of the Act, imply reasons for which the payor cannot be faulted or for which the payor does not bear responsibility in the culpable sense. The court would expect some evidence of circumstances where, despite reasonable, diligent and legitimate efforts by the support payor to comply with the support order, the support payor has been unable to do so for reasons that are not connected with an unwillingness to pay, a lack of effort, a failure to prioritize the support obligation or a deliberate neglect, failure or avoidance on the part of the payor. Evidence relating to the past and present circumstances of the payor, including his financial circumstances since the time of the first default under the order, the manner in which he has applied his available income and assets, and his efforts to secure employment or income during the time that the arrears have arisen will have some bearing upon the determination of the legitimacy of the reasons the payor puts forward 246 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

for his default under the support order. Circumstances that are beyond the control of the payor, resulting in the payor’s inability to pay, would be valid reasons. An illness on the part of the payor, including a mental disorder, rendering the payor completely unable to work on either a full or part-time basis, as in the case before the court, would amount to a valid reason for the payor’s failure to pay. 60 Clause 41 (10) (i) of the Act contemplates an order of imprisonment for failure to pay an amount owing at the time the order is made or a failure to make future payments required under the order: See: Saunders v. Saunders, [1987] O.J. No. 1578, 10 R.F.L. (3d) 284 (Ont. Dist. Ct.), at para. 11; Fischer, supra. 61 Enforcement legislation should be viewed as remedial rather than pu- nitive. See: Saunders, supra. 62 Imprisonment is a last resort. Something more than non-payment is required. The payor’s conduct must demonstrate a willful and deliberate disregard for the obligation to comply with court orders. It is meant as a mechanism to enforce support and not as a means of punishing the payor. See: Fischer, supra. 63 In Fischer, supra, the court writes at paragraph 25: Further, the case law and the Act recognize that imprisonment for non-payment is meant as a means of enforcing the support order and not as a means of punishing the payor. The payor must be released upon payment of the amount owed: see s. 41(10)(i). A committal order, imposed as a term of either a temporary or final order in a default hearing, is intended to induce compliance with the payment terms of the order. The prospect of imprisonment hopefully focuses the payor’s mind on the importance of making the required payments. The enforcement rationale for imprisonment upon non-payment makes sense only if the payor has the ability to make the payments required by the order: see Saunders, at paras. 11-13... 64 The maximum jail time should be reserved for the most severe cases. See: Ontario (Ontario (Director, Family Responsibility Office) v. Kilpa- trick (2008), 60 R.F.L. (6th) 435 (Ont. S.C.J.).

Part Six — Analysis 65 The payor was only partially able to rebut the presumption that he has the ability to pay the outstanding arrears under the existing court orders. 66 The payor has dug himself into a financial hole. He owes over $34,000 in support arrears between the two cases. He owes Revenue Canada about $50,000. He has nominal assets. The court accepts that the Ontario (Director, FRO) v. Adema S.B. Sherr J. 247

payor has not been able to run a financially successful practice. The court does not believe, based on the evidence presented, that he has the ability to pay the entire arrears owing at once (as requested by the Director) at this time. 67 However, the payor did not rebut the presumption that he could afford to pay some portion of the arrears immediately, that lump sum payments could be paid periodically towards the arrears and that he could pay the ongoing support accruals in the Adema case. 68 The payor was not a credible witness. He has not acted in good faith. 69 The payor is a sophisticated litigant. He understands, or should understand, the importance of preparing pleadings, affidavits and financial statements and the importance of complying with court orders. 70 The payor, by his actions, showed disdain for this process. 71 The payor, despite being served with the Notices of Default Hearings on April 15, 2015, did not voluntarily pay a penny of child support in either case. 72 On May 12, 2015, in both cases, the payor agreed to an order that he commence a motion to change. He did not comply with these orders. He did not provide reasonable excuses for his failure to comply with them. 73 The payor also consented to an order on May 12, 2015 to serve and file sworn financial statements. He did not do this until January 18, 2016, the date of these default hearings. 74 The payor was ordered (on consent) on May 12, 2015 to file Disputes to the Notices of Default Hearings, as well as his income tax returns and notices of assessment. He never filed Disputes or any affidavit evidence in these cases. He did not provide his 2014 income tax return until early January of 2016. Notices of assessment were not filed. 75 The payor provided no documentation to support his self-reported statements of revenues and expenses contained in his income tax returns. While the court accepts that the payor’s practice is not financially successful, it is not confident in his declarations of his income. The payor could not explain why his income has been so low for a person with his skills and experience. 76 The payor deposed that he did not drive a vehicle after his driver’s licence was suspended on November 4, 2013. However, in his 2014 income tax return he deducts $4,726 for car expenses. He could not explain this discrepancy. 248 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

77 A review of the payor’s Statement of Business and Professional Af- fairs for 2013 and 2014 reveals that he is overly aggressive in writing off expenses. He does not attribute any personal use for his vehicle, even though he used it for personal and business purposes. He writes off 50% of his home expenses, even though this home is shared with his girlfriend (who, based on the payor’s evidence, earns more than him). He could not explain other line items where expenses were deducted. 78 Even if the court accepted the payor’s statements of revenues as being correct, he has likely been earning between $30,000 and $40,000 per annum between 2013 and 2015. 79 The payor has had 9 months to show good faith by paying some support. 80 The payor has preferred his interests ahead of those of his children. His financial statement reveals that he spends $300 per month on alcohol and tobacco, $100 per month on entertainment and $300 per month towards his debts. Yet he is choosing not to voluntarily pay any child support. 81 The payor did not provide a valid justification for his poor payment history. He presented no plan to pay the arrears. He gave no indication that he would voluntarily make any payments in these cases. He presented as aggrieved that his support obligations are being enforced. He feels that his children have been provided for adequately by their mothers. Why is he being bothered now? 82 The payor has chosen not to bring a motion to change the Adema order. He has not rebutted the presumption that he has the ability to pay the ongoing support payments. 83 It has become clear that less aggressive enforcement options other than imprisonment have failed. The suspension of the payor’s driver’s licence and passport did not result in support compliance. These default proceedings have had little impact on his payments. The payor was given multiple opportunities to comply with the support and disclosure orders. 84 The payor knows or should know the potential consequences of his behaviour. It is disappointing that a family law lawyer has acted in such a manner. 85 The court has limited sympathy for the payor’s predicament. It is reserved for his children who have gone without adequate support and the mothers of those children who have assumed the payor’s support obligations. Ontario (Director, FRO) v. Adema S.B. Sherr J. 249

86 The message needs to be sent to the payor that child support orders for his children matter and will be enforced. The default orders shall provide for an immediate committal of the payor for 75 days in both cases or until a portion of the arrears ($3,500 in each case) is paid. 87 The payor will also be required to pay $2,500 towards the support arrears in each case on both July 1st and January 1st of each year until they are fully repaid, failing which he will be committed to jail for 75 days, for each payment in default, or until he pays the $2,500. 88 In addition, the payor will be required to maintain the monthly child support payments of $800 per month in the Adema case. He will be committed to jail for 3 days (or until the outstanding amount is paid in full), for each default in payment of ongoing support accruals. 89 The amounts that the payor will be required to pay to be released from jail are far less than those sought by the Director. The committal periods are also shorter than those sought by the Director. These committal periods shall run consecutively. 90 The maximum length of time, cumulatively, that the payor can be imprisoned under each Default order is 180 days (see: clause 41 (10) (i) of the Act). Once that limit is reached, a new default action would be required. 91 The payor asked for 7 days to wrap up his practice if the court chose to make committal orders. The court will hold the warrants of committal in abeyance and return the matter to court on January 29, 2016 at 10:00 a.m. This will also give the payor the opportunity to make the necessary lump sum payments to avoid going to jail on the return date.

Part Seven — Conclusion 92 In the Camposano case, there shall be a final default order on the following terms: a) Child support arrears are fixed in the sum of $15,073.30 as of today. b) The payor will be committed to jail immediately for 75 days or until such time as he pays $3,500 towards the arrears. c) The payor shall pay the sum of $2,500 towards the support arrears on both July 1st and January 1st of each year, until they are repaid (the January 1st payment starting in 2017). The payor will be committed to jail for 75 days (or until the outstanding amount is paid in full) for each default in payment. 250 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

d) The maximum length of time, cumulatively, that the payor can be imprisoned under this default order is 180 days. 93 In the Adema case, there shall be a final default order on the following terms: a) Child support arrears are fixed in the sum of $19,462.99 as of today. b) The payor will be committed to jail immediately for 75 days or until such time as he pays $3,500 towards the arrears. c) The payor shall pay the sum of $2,500 towards the support arrears on both July 1st and January 1st of each year (the January 1st payment starting in 2017), until they are repaid. The payor will be committed to jail for 75 days (or until the outstanding amount is paid in full) for each default in payment. d) The payor will also be required to pay the ongoing child support payments of $800 each month starting on February 1, 2016. He shall be committed to jail for 3 days (or until the outstanding amount is paid in full) for each payment in default of ongoing support accruals. e) The maximum length of time, cumulatively, that the payor can be imprisoned under this default order is 180 days. 94 The periods of incarceration set out in the Camposano and Adema cases shall run consecutively. 95 Nothing in these orders preclude the Director from collecting support arrears from any government source (such as income tax or HST returns) or lottery or prize winnings. 96 These matters shall return to court on January 29, 2016 at 10:00 a.m. The warrants of committal shall be held in abeyance and not enforced until that date. Application granted. Haas v. Payne Estate 251

[Indexed as: Haas v. Payne Estate] Martina Haas, Applicant v. The Estate of Alton Lee Payne, Respondent Nova Scotia Probate Court Docket: Halifax H61003, 439154 2015 NSSC 372 Gerald R.P. Moir J. Heard: September 10, 2015 Judgment: December 29, 2015* Family law –––– Domestic contracts and settlements — Enforcement — Ef- fect of death –––– Parties were married for 3.5 years and had one child — Par- ties entered into separation agreement where husband agreed to pay child and spousal support — Obligation to pay spousal support was for fixed term from May 2006 to July 2018 — Husband died — Wife applied for order that husband’s estate was obligated to continue making spousal support payments — Application granted — Divorce Act did not authorize award of monthly support that survived death of paying spouse but parties could expressly or implicitly agree to survival, such as in separation agreement — Clause in separation agreement expressly bound estate to promises that were made — Text of clauses of agreement expressly provided that spousal support was to be paid until 2018, and not just until husband’s death — Conclusion that estate was bound to pay spousal support after husband’s death was reinforced when text was read in context. Cases considered by Gerald R.P. Moir J.: Black v. Black (1981), 46 N.S.R. (2d) 361, 89 A.P.R. 361, 123 D.L.R. (3d) 499, 1981 CarswellNS 397 (N.S. T.D.) — considered Brubacher v. Brubacher Estate (1997), 1997 CarswellOnt 2374, 18 E.T.R. (2d) 296, [1997] O.J. No. 2466, 30 R.F.L. (4th) 276, 33 O.T.C. 241 (Ont. Gen. Div.) — followed Carmichael v. Carmichael (1992), 43 R.F.L. (3d) 145, 115 N.S.R. (2d) 45, 314 A.P.R. 45, 96 D.L.R. (4th) 685, 1992 CarswellNS 80 (N.S. C.A.) — referred to

* Additional reasons at Haas v. Payne Estate (2016), 2016 NSSC 92, 2016 Car- swellNS 264 (N.S. S.C.) respecting costs; further additional reasons at Haas v. Payne Estate (2016), [2016] N.S.J. No. 168, 2016 CarswellNS 362, 2016 NSSC 119 (N.S. S.C.). 252 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

McLeod v. McLeod (2013), 2013 BCCA 552, 2013 CarswellBC 3834, 38 R.F.L. (7th) 295, [2014] 4 W.W.R. 513, 369 D.L.R. (4th) 438, 348 B.C.A.C. 182, 595 W.A.C. 182, 56 B.C.L.R. (5th) 42 (B.C. C.A.) — followed Statutes considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Generally — referred to Maintenance and Custody Act, R.S.N.S. 1989, c. 160 Generally — referred to Testators’ Family Maintenance Act, R.S.N.S. 1989, c. 465 Generally — referred to Regulations considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Federal Child Support Guidelines, SOR/97-175 Generally — referred to

APPLICATION by wife for order that husband’s estate was obligated to continue making spousal support payments.

Sheree L. Conlon, Michael MacIsaac (articled clerk), for Applicant Julia E. Cornish, Q.C., Jennifer M. Kooren, for Respondent

Gerald R.P. Moir J.:

1 Introduction. The late Mr. Alton Payne and Ms. Martina Haas were married. They separated and divorced. He agreed to pay spousal support. 2 Ms. Hass filed a claim in Probate Court as a creditor of her late husband. She says the estate is obliged to continue making the support payments. 3 The estate contests Ms. Hass’ claim. 4 Issue. I have to determine whether the support obligation continues. If it does continue, I also have to determine whether the proceeds of a life insurance policy paid to Ms. Hass are to be credited against the spousal support obligation. 5 Background to Agreement. Mr. Payne and Ms. Hass were married in 1990. Mr. Payne was twenty-five. They had one child, a daughter born in 2000. They separated three and a half years later. 6 Mr. Payne was earning just under $200,000 before the separation. Ms. Hass worked for his company, and she resigned not long after the Haas v. Payne Estate Gerald R.P. Moir J. 253

separation. Both agreed to the resignation. She was unemployed at the time of the separation agreement. 7 The couple owned a home worth $650,000 when they separated. The equity was about $300,000. They also owned a building lot worth about $60,000. 8 Mr. Payne’s investments included $140,000 equity in newly acquired real estate, a $15,000 interest in a cottage on Newfoundland, $215,000 in stock, and about $54,000 in an RRSP. His unsecured debts were modest. 9 Ms. Haas had primary care of their daughter, and Mr. Payne exercised liberal access on weekdays, weekends, and holidays. The daughter attended the Sacred Heart School of Halifax, a private school with a substantial tuition. Between separation and agreement, Mr. Payne paid child support in the Guidelines amount. When the agreement was made, the parties assumed that their daughter, who was ten at the time, would obtain a post-secondary education and remain dependant until she was in her early twenties. 10 Terms of Agreement. Among other things, the agreement provides for Mr. Payne to pay child support and spousal support. 11 A number of provisions in the agreement contemplate the death of a party. Clause 18 provides for guardianship of the daughter by the surviving parent “in the event of the death of one parent”. Clause 48 provides for insurance on Mr. Payne’s life “with the intention this life insurance will replace the support payments for the child should the husband die while the child remains dependant”. In clauses 54 and 55, the parties agreed to execute wills. In the case of Ms. Haas, her will would pass the matrimonial home to the daughter. Mr. Payne’s will would make “adequate provisions for the child of the marriage”. 12 The provisions about spousal support are in clauses 50 to 55. The obligation to pay spousal support is for a fixed term. Clause 52 provides for monthly payments of $4,395 beginning on May 7, 2006. Clause 53(a) provides for the last payment to be made on July 7, 2018. Clause 53(b) reiterates finality: The wife acknowledges and agrees that there shall be no spousal maintenance paid by or to the husband or the wife beyond July 7, 2018. Beyond this absolute termination date, each party releases and discharges all right and claims that each has or may have against the other for the payment of interim or permanent, periodic or lump sum, maintenance or support under the laws of any jurisdiction and in particular under the Maintenance and Custody Act, the Testators’ Fam- 254 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

ily Maintenance Act and the Divorce Act (1985) of Canada or any similar or successor legislation thereto. It is further acknowledged there will be no variation of this provision in light of future changes, including changes which may be interpreted as radical, catastrophic, unforeseen at the time of the execution of the Agreement, and/or causally connected to the marriage and the roles adopted by the parties during the marriage. Future misfortunes, including those based upon financial consideration, disability, poor health or disease, will not result in variation of this paragraph. Spousal support can be varied downward, but not upward: clauses 53(e) and (f). 13 Unlike the child support provisions, there is no requirement for life insurance to secure spousal support if Mr. Payne dies. 14 Clause 10(a) of the agreement provides, “This agreement binds the parties according to its terms, even if a provision is beyond the power of the Court to order.” Clause 63 provides, “This agreement shall bind the parties and their respective estates.” 15 Events After Agreement. Mr. Payne married Ms. Holly Payne a little over a year before his sudden and unexpected death. He also made a will. Ms. Payne is the executor. 16 The will leaves real property to Ms. Payne. The residue is split evenly between Ms. Payne and the daughter of Mr. Payne and Ms. Haas. 17 I have been provided with some evidence about Mr. Payne, Ms. Haas, their daughter, and Ms. Payne after the separation agreement. I do not propose to review that evidence, other than to say that all parties appear to have conducted themselves with respect for one another. What parties do or say after contracting is relevant only to resolve an ambiguity and, even for that purpose, the evidence may be given little weight: Hall, Ca- nadian Contractual Interpretation Law 2ed. at pages 82 to 85. 18 Effects of Agreement on Support After Death. The estate refers me to the decision of Justice Hallett in Black v. Black (1981), 46 N.S.R. (2d) 361 (N.S. T.D.). The constitutional jurisdiction of Parliament to make laws about marriage and divorce permits the spousal support provisions of the Divorce Act “to the extent that maintenance was payable at law by the husband; that is, for his lifetime.”: para. 27. After death, periodic maintenance is the subject of provincial “legislation relating to the suc- cession to property”, not the federal Divorce Act: also para. 27. 19 “[T]he common law is clear; periodic maintenance payments cease on the death of the husband unless the wife either obtained an agreement Haas v. Payne Estate Gerald R.P. Moir J. 255

from her husband to pay maintenance during her lifetime or obtained an order for secured maintenance from the Court”: para. 8. 20 In Black the parties had made a separation agreement, which was incorporated into the corollary relief agreement. The agreement provided for further assurances from the parties or their estates (para. 1), but this “can add nothing to the scope of the covenants in the Agreement.”: para. 9. “It is simply a covenant made by the parties that ensures that the parties or their respective executors or administrators will give effect to the covenants as contained in the Agreement.”: also, para. 9. It “does not extend the scope of any particular covenants”: also, para. 9. 21 Justice Hallett found nothing else in the agreement that extended spousal support beyond the life of the payor. He concluded para. 9 of Black by saying: If the parties intended that the periodic maintenance payments were to continue for the lifetime of Mrs. Black, they would surely have used language that clearly stated that such was to be, as the common law is clear, periodic maintenance payments cease on the death of either spouse. 22 In connection with an argument about a section of the Divorce Act authorizing rules of court for enforcement of orders “including their enforcement after death”, Justice Hallett reiterated at para. 30, “it is my opinion that unless he has bound himself contractually that periodic maintenance be paid by his estate following his death, his obligation to maintain his wife, be it while married or following divorce, terminates on his death.” He summarized his reasons this way at para. 32: (1) The words used in the Separation Agreement signed by Mr. and Mrs. Black do not disclose to me an intention that Mr. Black agreed to pay maintenance for the lifetime of Mrs. Black; (2) The Court has no jurisdiction under the Divorce Act to make an order making the payment of periodic maintenance binding on the estate of Mr. Black or payable to Mrs. Black during her lifetime. Of course, the intention spoken of in (1) can be captured by express or implied terms. See, para. 10. 23 The decision in Black was approved in Carmichael v. Carmichael (1992), 115 N.S.R. (2d) 45 (N.S. C.A.). 24 The estate refers me to McLeod v. McLeod, 2013 BCCA 552 (B.C. C.A.) where, at para. 25, Justice Smith summarizes principles taken from 256 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

case law about support obligations surviving death. This includes, “If the agreement or order provides a fixed term of support, the estate is bound by that agreement...”. The estate says that the authority underlying this statement is distinguishable because there was no provision for variation in that case. 25 The underlying authority is Brubacher v. Brubacher Estate, [1997] O.J. No. 2466 (Ont. Gen. Div.). Justice Herald reviewed authorities holding that support obligations do not survive the death of the paying spouse unless there is an agreement providing for that: paras. 10 to 15. However, Mr. Brubacher had been ordered to pay spousal support until June 1, 1999, and he died on March 21, 1997. So, “the temporal specificity of the order” distinguished it from the reviewed authorities. Contrary to the submission for the estate, power to vary does not appear to have been a consideration for Justice Herald. 26 The state of the law in Nova Scotia on spousal support obligations surviving death is this. The Divorce Act does not authorize an award of monthly spousal support that survives death of the paying spouse. How- ever, the parties may expressly or implicitly agree to survival, such as in a separation agreement. 27 Whether the parties have agreed for survival of spousal support obligations after the death of the paying spouse turns on principles of contractual interpretation. See, Hall, Canadian Contractual Interpretation Law 2ed., especially at pages 9 to 13, 21 to 24, and 33 to 35. 28 Interpretation of Agreement. A clause binding a party’s estate, such as clause 63 of the Payne and Haas separation agreement, cannot be equated to a covenant for further assurances that binds an estate, such as that in Black. Further assurances clauses that extend to estates require the estates to provide further documentation, such as a deed of matrimonial property, necessary to give effect to promises found in the agreement. Clause 63 goes much further than that. It expressly binds the estate to the promises themselves. The clause makes it clear that the estate is liable on all of the promises. 29 Thus, clause 63 tends to indicate that the promises of spousal support survive death. 30 That conclusion is clinched by clauses 53(a) and 53(b), which make Mr. Payne, and by operation of clause 63 his estate, liable to pay spousal support until July 7, 2018 and not until his earlier death. Haas v. Payne Estate Gerald R.P. Moir J. 257

31 In combination, clauses 63, 53(a), and 53(b) make it express that the spousal support obligations do not expire until July 7, 2018. 32 The picture becomes even more clear when these clauses are set in the context of their surrounding promises. The parties contemplated death as a possibility important to the future operation of the agreement: guardianship of their daughter, life insurance to secure child support, and requirements for their wills. 33 The inclusion of life insurance for child support and the absence of life insurance for spousal support tell nothing against the survival of spousal support obligations. They show only that the parties negotiated security for one obligation and not another. 34 The provisions allowing Mr. Payne to apply to a judge to vary spousal support downward do not imply the obligation expires on his death. There is no logical connection between the two concepts. Moreo- ver, it may be that clauses 10(a) and 63 allow the estate to apply for variation based on the estate’s income compared with the income referred to in clauses 53(e) and (f). 35 In conclusion, the text of clauses 53(a), 53(b), and 63 expressly provide that spousal support is to be paid after Mr. Payne’s death until 2018. That conclusion is reinforced when the text is read in context. 36 Life Insurance Payable to Ms. Haas. Although the separation agreement did not require it, Mr. Payne maintained a $150,000 insurance policy for the benefit of Ms. Haas. The estate argues this should be set off against the spousal support obligation. The agreement does not provide for such. The subject is, therefore, only relevant on a variation, assuming the separation agreement gives the estate a contractual right to seek variation by a court. 37 Amount of Claim. Ms. Haas filed a claim against the estate for $202,170 plus interest. This covers outstanding support payments and those to accrue until July of 2018. The estate argues that the amount has to be discounted for the tax differential between periodic support and lump sum maintenance, and to present value the future portion. 38 Ms. Haas points out that the quantification satisfies probate practice, but the obligation is periodic. It can only be converted to a lump sum by agreement or, if it exists, by a contractually founded application to vary. Tax advantage, discounting, and other relevant evidence would be considered on such an application. 258 REPORTS OF FAMILY LAW 75 R.F.L. (7th)

39 The terms for reduction of spousal support are such that a variation application would be restricted to future payments. I must make it clear that I am not deciding whether the estate can apply to a judge for a variation. Whether Black precludes an application under the Divorce Act, and whether the separation agreement affords a means to apply for a variation, are not raised on an application to determine a claim filed with Pro- bate Court. 40 Conclusion. I will grant an order that allows Ms. Haas’ claim in the amount of periodic payments now due plus interest calculated from the due date of each payment. The order may declare that $4,395 comes due on the seventh day of each subsequent month until and including July 7, 2018. The order may also declare that the future amounts may be capital- ized, reduced, or extinguished by agreement or, if the estate establishes a contractual entitlement to seek variation by a judge, by order. 41 The parties may make written representations on interest and costs. Application granted.