REPORTS of FAMILY LAW Seventh Series/Septi`Eme S´Erie Recueil De Jurisprudence En Droit De La Famille VOLUME 67 (Cited 67 R.F.L

REPORTS OF FAMILY LAW Seventh Series/Septième série Recueil de jurisprudence en droit de la famille VOLUME 67 (Cited 67 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

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DIGESTS OF CASES Aboriginal law Family law — Children in need of protection –––– Proving aboriginal heritage. M. (C.) v. Children’s Aid Society of the Regional Municipality of Water- loo, 2015 CarswellOnt 13733 ...... Ont. C.A. 259 Bankruptcy and insolvency Effect of bankruptcy on other proceedings — Proceedings against bankrupt — Family law claims –––– Parties were married in 1985 and separated in 2008 — Husband petitioned for divorce and equal division of matrimonial home and property — Wife brought counter-petition seeking unequal division of family property — In May 2014, husband was ordered to pay interim spousal support of $7,500 per month — Approximately five weeks after support order was issued, husband filed assignment in bankruptcy — Wife applied for order that stay of her family property claim, caused by husband’s assignment in bankruptcy, be lifted and that matter be permitted to continue, but only with respect to property that was exempt from seizure by trustee in bankruptcy — Trustee said application was improperly before court in that wife was neither creditor to estate in bankruptcy nor was she director of corporation with interest in bankrupt estate — Trustee said wife had no vested title or interest in assets with trustee for benefit of creditors, and that she would not be prejudiced by stay — Application granted — Wife’s claim was provable in bankruptcy and as such, she should be invited by trustee to file claim and be given same consideration as was given to any other creditor — Continued operation of stay would materially prejudice wife in that it would prevent her from pursuing her family property claim in respect of exempt assets that did not form part of estate in bankruptcy — Stay was lifted to allow wife to pursue her claim against exempt assets — Wife was permitted to pursue claim against non-exempt assets in same way as any other creditor. Shirkie v. Shirkie, 2015 CarswellSask 607 ...... Sask. Q.B. 274 Bankruptcy and insolvency Property of bankrupt — Family law issues — Matrimonial property legislation –––– Parties were married in 1985 and separated in 2008 — Husband petitioned for divorce and equal division of matrimonial home and property — Wife brought counter-petition seeking unequal division of family property — In May 2014, husband was ordered to pay interim spousal support of $7,500 per month — Approximately five weeks after support order was issued, husband filed assignment in bankruptcy — Wife applied for order that stay of her family property claim, caused by husband’s assignment in bankruptcy, be lifted and that matter be permitted to continue, but only with respect to property that was exempt from seizure by trustee in bankruptcy — Trustee said application was improperly before court in that wife was neither creditor to estate in bankruptcy nor was she director of corporation with interest in bankrupt estate — Trustee said wife had no vested title or interest in assets with trustee for benefit of creditors, and that she would not be prejudiced by stay — Application granted — Wife’s claim was provable in bankruptcy and as such, she should be invited by trustee to file claim and be ivREPORTS OF FAMILY LAW 67 R.F.L. (7th)

given same consideration as was given to any other creditor — Continued operation of stay would materially prejudice wife in that it would prevent her from pursuing her family property claim in respect of exempt assets that did not form part of estate in bankruptcy — Stay was lifted to allow wife to pursue her claim against exempt assets — Wife was permitted to pursue claim against non-exempt assets in same way as any other creditor. Shirkie v. Shirkie, 2015 CarswellSask 607 ...... Sask. Q.B. 274 Debtors and creditors Executions — Exigibility — Real property interests — Land held in trust — Judgment debtor as trustee –––– Taxpayer and personal respondent L purchased home in joint tenancy while in common law relationship — Parties separated and separation agreements were drafted in 2009 and 2012, whereby taxpayer released interest in home to L in exchange for her release of claims on his business and his pension — Agreements never formally executed — Bank obtained judgment against taxpayer on guarantee and registered it against his interest in home — Canada Revenue Agency (CRA) also registered judgment against taxpayer’s interest — Taxpayer brought motion for declaration that his interest was held in trust for L and order that bank and CRA judgments be discharged — Motion granted — In absence of formal documentation creating trust, court may infer intention to create trust from surrounding circumstances — Parties had acted on separation agreements by L paying mortgage payments and modifying court-ordered support amounts — Statutory presumption that persons registered on title of property are presumed to hold its legal and equitable interest — Burden on party seeking to challenge state of title to prove otherwise — Presumption can be displaced by equitable principles, including enforcement of agreement between parties to prevent unjust enrichment if face of title is upheld — Tax- payer would be unjustly enriched if property interest held to still be his — Monetary award would be inappropriate in circumstances — Judgments were subsequent to agreements — Taxpayer had no interest in property to be attached. McInerney v. Laass, 2015 CarswellBC 2700 ...... B.C. S.C. 290 Estates and trusts Trusts — Constructive trust — Family — General principles –––– Taxpayer and personal respondent L purchased home in joint tenancy while in common law relationship — Parties separated and separation agreements were drafted in 2009 and 2012, whereby taxpayer released interest in home to L in exchange for her release of claims on his business and his pension — Agree- ments never formally executed — Bank obtained judgment against taxpayer on guarantee and registered it against his interest in home — Canada Reve- nue Agency (CRA) also registered judgment against taxpayer’s interest — Taxpayer brought motion for declaration that his interest was held in trust for L and order that bank and CRA judgments be discharged — Motion granted — In absence of formal documentation creating trust, court may infer intention to create trust from surrounding circumstances — Parties had acted on separation agreements by L paying mortgage payments and modifying court-ordered support amounts — Statutory presumption that persons 67 R.F.L. (7th)DIGESTS OF CASES v

registered on title of property are presumed to hold its legal and equitable interest — Burden on party seeking to challenge state of title to prove otherwise — Presumption can be displaced by equitable principles, including enforcement of agreement between parties to prevent unjust enrichment if face of title is upheld — Taxpayer would be unjustly enriched if property interest held to still be his — Monetary award would be inappropriate in circumstances — Judgments were subsequent to agreements — Taxpayer had no interest in property to be attached. McInerney v. Laass, 2015 CarswellBC 2700 ...... B.C. S.C. 290 Family law Children born outside marriage — Affiliation and support — Evidence — Blood, DNA and tissue tests –––– Child tested positive for cocaine at time of birth — Child was placed in care of children’s aid society as result of protection issues including drug use and domestic conflict — Man brought motion for DNA testing to determine if he was biological father of child, and for order requiring society to pay costs of test — Motion granted — Leave to obtain DNA testing was ordered and society was to pay for cost of testing — There was no provision in Child and Family Services Act that permitted court to order DNA testing — Section 10(1) of Children’s Law Reform Act (CLRA) gave court jurisdiction to order DNA testing, as this was civil proceeding in which parentage of child had to be determined — It was in best interests of child to order DNA testing — It was important for child’s psychological well-being to know if man was his biological father — Court had jurisdiction to determine who would pay for costs of testing pursuant to s. 10(2) of CLRA — Mother and man could not afford DNA testing, but parentage issue was important. Catholic Children’s Aid Society of Toronto v. S. (N.), 2015 CarswellOnt 10811 ...... Ont. C.J. 479 Family law Children in need of protection — Application for return of child — Under permanent order — On child’s placement for adoption –––– Parents’ two- year-old and four-year-old were apprehended and placed in foster care in September 2010 and, three years later, made Crown wards without access for purpose of adoption — Parents appeal was dismissed — Trial judge found mother’s claim that children should not be adopted because they had aboriginal heritage was raised for first time on appeal and was rejected because there was little evidence of mother’s aboriginal heritage — Trial judge found lower court relied on assessor’s report of mother’s inability to connect emotionally to children and to gain their attention — Trial judge found children were doing well in foster care, there was no evidence that continued separation of children from biological parents was traumatic for them, and opposite appeared to be case — In finding that adoption was in best interests of children, trial judge found numerous serious and chronic deficiencies in appellants’ parenting abilities, including inability to maintain safe, healthy home or attend counselling — Trial judge found it was overwhelmingly in children’s best interests to be adopted by current foster parents — Parents appealed — Appeal dismissed — Trial judge made no error in failing to viREPORTS OF FAMILY LAW 67 R.F.L. (7th)

identify mother or children as Indian or as native persons — Mother’s self- identification as aboriginal did not affect findings regarding children — Ac- cess order for parents was not available under legislation and application of criminal law principles relating to aboriginal offenders were not applicable — Trial judge did not err regarding assessment of mother’s demeanor — Trial judge properly considered best interests of children and findings were supported by evidence — Delay was matter of concern. M. (C.) v. Children’s Aid Society of the Regional Municipality of Water- loo, 2015 CarswellOnt 13733 ...... Ont. C.A. 259 Family law Children in need of protection — Application for temporary custody — Grounds for temporary order — General principles –––– There were concerns with mother’s mental health and condition of home — There was insufficient food in house and there were concerns with children’s hygiene — Mother was involuntary patient at hospital for period for bizarre and paranoid behaviour — Children internalized mother’s behaviour — Mother used marijuana regularly — Children were apprehended from mother — Mother exercised supervised access — Mother was currently exercising unsupervised access to one of children — Father exercised access — Mother’s mental health stabilized and cooperated with children’s aid society — There was no evidence mother continued to use illicit substances — Mother planned to move to Alberta with children — Mother completed parenting programs — Society sought society warship for six months — Application granted — Children were to remain in temporary care of society with mother having interim access being mixed of supervised and unsupervised — Mother was granted increased access on graduated basis — Father’s access as on same terms as previously — Children could not be safely returned to mother under terms of supervision — Children could not be safely placed with father — There was very little information about father — Mother use of marijuana impacted her ability to care for children — Plan to move to Alberta was not viable — Mother was well on her way to having children returned to her care if she maintained her mental stability for next month, even with increasing amounts of access, continued to attend access regularly, continued to access her supports, maintained her residence in clean and hygienic state and met regularly with, and cooperated with, society worker. Children’s Aid Society of Algoma v. K. (A.), 2015 CarswellOnt 14633 ...... Ont. C.J. 485 Family law Children in need of protection — General principles — Jurisdiction of courts — Jurisdiction to make orders — Miscellaneous –––– Child tested positive for cocaine at time of birth — Child was placed in care of children’s aid society as result of protection issues including drug use and domestic conflict — Man brought motion for DNA testing to determine if he was biological father of child, and for order requiring society to pay costs of test — Motion granted — Leave to obtain DNA testing was ordered and society was to pay for cost of testing — There was no provision in Child and Family Services Act that permitted court to order DNA testing — Section 10(1) of 67 R.F.L. (7th)DIGESTS OF CASES vii

Children’s Law Reform Act (CLRA) gave court jurisdiction to order DNA testing, as this was civil proceeding in which parentage of child had to be determined — It was in best interests of child to order DNA testing — It was important for child’s psychological well-being to know if man was his biological father — Court had jurisdiction to determine who would pay for costs of testing pursuant to s. 10(2) of CLRA — Mother and man could not afford DNA testing, but parentage issue was important. Catholic Children’s Aid Society of Toronto v. S. (N.), 2015 CarswellOnt 10811 ...... Ont. C.J. 479 Family law Children in need of protection — Practice and procedure in custody hearings — General principles. M. (C.) v. Children’s Aid Society of the Regional Municipality of Water- loo, 2015 CarswellOnt 13733 ...... Ont. C.A. 259 Family law Costs — Children in need of protection –––– Costs against Children’s Aid Society (CAS) — Mother was in relationship with father who had history of physical and sexual assaults on others — Mother’s first child with father was apprehended at six weeks of age — Apprehension occurred because father, by court order, was not permitted to have contact with children except in supervision of adult approved by probation and parole officer — Mother herself had been doing supervision, without necessary approval — Mother’s second child with father was apprehended at birth — Mother was church- going woman who believed father could be rehabilitated, but she maintained distance from CAS — At some point, CAS worker presumed mother had risk factors of substance abuse and mental illness even though there were none — Children were found to be in need of protection but were ultimately returned to mother under supervision order that required, in part, that father to be kept away from them — CAS was directed to purge its records of false information — Father was currently detained on serious charges — Mother sought costs against CAS in total amount of $21,919.39 — Mother was awarded $5,000 for costs, and prior direction to CAS to purge its records of false information was reiterated — CAS had not “misread” case, and there was no unfair dealing to be addressed by costs award — CAS had apprehended children due to risk from father — There was no “unfairness” in CAS identifying risk of harm posed by mother when she assumed role of supervisor without seeking requisite approval — There was no unfair dealing in CAS’s expectation that mother end her relationship with father — There was also no unfair dealing in CAS’s attempt to seek Crown wardship for both children — Mother’s apparent loyalty to father throughout kept alive CAS’s initial concern that, for reasons unfathomable to CAS, she was blind to risk of harm embedded in his dysfunction — As result of mother choosing to isolate herself, her background and understandable motives had not come to light until trial — CAS’s investigation of mother fell markedly short of what was needed, but mother had made herself unavailable — CAS could be faulted for rejecting child’s godmother as alternative to foster care, as had proposed by father and supported by mother — Both godmother and viiiREPORTS OF FAMILY LAW 67 R.F.L. (7th)

her plan were more than adequate for these children while matter made its way through court process — On other hand, mother never brought motion to change temporary custody order prior to trial — Sole fault warranting costs award was CAS worker’s presumption of mother having risk factors of substance abuse and mental illness — Those presumptions left sitting in CAS records were seriously maligning. Catholic Children’s Aid Society of Toronto v. C. (M.), 2015 CarswellOnt 12062 ...... Ont. C.J. 454 Family law Custody and access — Access — By person other than parent — Grandpar- ent –––– Mother and father of two children separated — Consent order issued, granting mother sole custody and father supervised access — Paternal grandmother and step-grandfather (“grandparents”) were involved in children’s lives — Mother took children to meet biological paternal grandfather — Grandmother made disclosure of some kind to older child, respecting biological grandfather’s abuse of her — Mother cut off grandparents’ access — Order issued, granting grandparents supervised access to children — Father brought motion to change order to allow him unsupervised access; grandparents brought motion to change order to allow them unsupervised access including extended periods of time during holidays — Father’s motion dismissed; grandparents’ motion granted — Even if grandmother did provide child with graphic details of abuse, mother’s response was excessive and unwarranted — It was not in best interests of children for mother to terminate access to grandparents — Children had spent great deal of time with and were closely connected with grandparents, clearly enjoying and benefitting from relationship — Restricting grandparents’ access to supervised access imperiled and interfered with positive relationship — None of mother’s complaints justified curtailing contact, given close bond that had already developed — Grandmother’s difficulties with criminal law and mental health were part of her past and were not current issues — Any comments made by grandmother did not traumatize child to extent suggested by mother — Grandparents established that unsupervised access was in children’s best interests. Greenan v. Johns, 2015 CarswellOnt 13465 ...... Ont. S.C.J. 374 Family law Custody and access — Access — Supervised access –––– Mother and father of two children separated — Consent order issued, granting mother sole custody and father supervised access after apparent suicide attempt — Paternal grandmother and step-grandfather (“grandparents”) were involved in children’s lives — Mother took children to meet biological paternal grandfather — Grandmother made disclosure of some kind to older child, respecting biological grandfather’s abuse of her — Mother cut off grandparents’ access — Order issued, granting grandparents supervised access to children — Father brought motion to change order to allow him unsupervised access and to return children’s residency to his hometown; grandparents brought motion to change order to allow them unsupervised access — Father’s motion dismissed; grandparents’ motion granted — Father had turbulent and volatile 67 R.F.L. (7th)DIGESTS OF CASES ix

relationships with grandparents, and romantic partners including mother and L — Dysfunctional relationship with L involved harassment that led to criminal convictions and hospitalization after apparent suicide attempt — Father painted picture of having turned life around with latest girlfriend and their daughter, but evidence showed that dysfunctional pattern continued with police being called during argument, with hospitalization, and with recent end of relationship — Father had not addressed anger management, mental health, and substance abuse issues — Father’s commitment to seeing children had not been sustained, with large gaps in time where he had not seen them even at supervised access facility where definite schedule could have been set up — Father and children loved each other, but he had not made them first priority in life. Greenan v. Johns, 2015 CarswellOnt 13465 ...... Ont. S.C.J. 374 Family law Custody and access — Appeals — General principles –––– Mother and father of two teenage children separated after 12 years of marriage — Matri- monial action was placed on trial list — Mother’s motion for summary judgment was granted, with mother awarded sole custody and costs in amount of $20,000 inclusive and father’s access left to children’s discretion — Father appealed — Appeal dismissed — Timing of mother’s motion was not problematic, as mother had served answer, divorce claim was severed from action, and there was no legal requirement that motion for summary judgment be brought only before conduct of trial management conference — Mother’s motion did not seek to alter status quo regarding custody and access, as children resided with mother and had elected not to exercise their right of access to father during three years since separation — Motion judge did not mistakenly place onus on father, but merely found that, after mother met obligation under R.16(4) of Family Law Rules to show no genuine issue, father failed to provide evidence of specific facts showing genuine issue for trial as required by R. 16(4.1) — Motion judge’s conclusion that outcome of trial on custody and access was certainty was open to him on evidence adduced — Motion judge’s reasons demonstrated that he considered evidence of needs and circumstances of children and did not fail to consider any material evidence — Evidence overwhelmingly supported motion judge’s conclusion that forcing access with father against wishes of children would be counterproductive, detrimental and likely futile — Costs award was not plainly wrong or tainted by error in principle. De Melo v. De Melo, 2015 CarswellOnt 13452 ...... Ont. C.A. 269 Family law Custody and access — Terms of custody order — Mobility –––– Mother and father of two children separated — Consent order issued, granting mother sole custody and father supervised access after apparent suicide attempt — Paternal grandmother and step-grandfather (“grandparents”) were involved in children’s lives — Mother cut off grandparents’ access — Order issued, granting grandparents supervised access to children and allowing mother to move with children to another city — Father brought motion to change order to allow him unsupervised access and to return children’s residency to his xREPORTS OF FAMILY LAW 67 R.F.L. (7th)

hometown; grandparents brought motion to change order to allow them unsupervised access including extended periods of time during holidays — Fa- ther’s motion dismissed; grandparents’ motion granted — Consent order, stating that “applicants” would not object to change in residency, was made in proceeding involving grandparents’ application for access — Even though father was united in interest with grandparents when they resolved matter, underlying minutes of settlement clearly identified father as being respondent in that application and literal wording of order could not be ignored — Father did not consent to move — Father did not try to prevent move by any interlocutory proceedings — Children had been living in new city for 18 months, and were well-settled there — Mother was pursuing post-secondary education to become economically self-sufficient — It was more beneficial for children to continue with move they had adjusted to — Given dynamics in this case, it made sense for there to be distance between adult parties. Greenan v. Johns, 2015 CarswellOnt 13465 ...... Ont. S.C.J. 374 Family law Division of family property — Determination of ownership of property — Application of trust principles — Resulting and constructive trusts — Con- structive trusts generally –––– Taxpayer and personal respondent L purchased home in joint tenancy while in common law relationship — Parties separated and separation agreements were drafted in 2009 and 2012, whereby taxpayer released interest in home to L in exchange for her release of claims on his business and his pension — Agreements never formally executed — Bank obtained judgment against taxpayer on guarantee and registered it against his interest in home — Canada Revenue Agency (CRA) also registered judgment against taxpayer’s interest — Taxpayer brought motion for declaration that his interest was held in trust for L and order that bank and CRA judgments be discharged — Motion granted — In absence of formal documentation creating trust, court may infer intention to create trust from surrounding circumstances — Parties had acted on separation agreements by L paying mortgage payments and modifying court-ordered support amounts — Statutory presumption that persons registered on title of property are presumed to hold its legal and equitable interest — Burden on party seeking to challenge state of title to prove otherwise — Presumption can be displaced by equitable principles, including enforcement of agreement between parties to prevent unjust enrichment if face of title is upheld — Tax- payer would be unjustly enriched if property interest held to still be his — Monetary award would be inappropriate in circumstances — Judgments were subsequent to agreements — Taxpayer had no interest in property to be attached. McInerney v. Laass, 2015 CarswellBC 2700 ...... B.C. S.C. 290 Family law Division of family property — Entitlement — General principles –––– Par- ties were married in 1985 and separated in 2008 — Husband petitioned for divorce and equal division of matrimonial home and property — Wife brought counter-petition seeking unequal division of family property — In May 2014, husband was ordered to pay interim spousal support of $7,500 67 R.F.L. (7th)DIGESTS OF CASES xi

per month — Approximately five weeks after support order was issued, husband filed assignment in bankruptcy — Wife applied for order that stay of her family property claim, caused by husband’s assignment in bankruptcy, be lifted and that matter be permitted to continue, but only with respect to property that was exempt from seizure by trustee in bankruptcy — Trustee said application was improperly before court in that wife was neither creditor to estate in bankruptcy nor was she director of corporation with interest in bankrupt estate — Trustee said wife had no vested title or interest in assets with trustee for benefit of creditors, and that she would not be prejudiced by stay — Application granted — Wife’s claim was provable in bankruptcy and as such, she should be invited by trustee to file claim and be given same consideration as was given to any other creditor — Continued operation of stay would materially prejudice wife in that it would prevent her from pursuing her family property claim in respect of exempt assets that did not form part of estate in bankruptcy — Stay was lifted to allow wife to pursue her claim against exempt assets — Wife was permitted to pursue claim against non-exempt assets in same way as any other creditor. Shirkie v. Shirkie, 2015 CarswellSask 607 ...... Sask. Q.B. 274 Family law Division of family property — Events after separation — Miscellane- ous –––– Parties were married in 1985 and separated in 2008 — Husband petitioned for divorce and equal division of matrimonial home and property — Wife brought counter-petition seeking unequal division of family property — In May 2014, husband was ordered to pay interim spousal support of $7,500 per month — Approximately five weeks after support order was issued, husband filed assignment in bankruptcy — Wife applied for order that stay of her family property claim, caused by husband’s assignment in bankruptcy, be lifted and that matter be permitted to continue, but only with respect to property that was exempt from seizure by trustee in bankruptcy — Trustee said application was improperly before court in that wife was neither creditor to estate in bankruptcy nor was she director of corporation with interest in bankrupt estate — Trustee said wife had no vested title or interest in assets with trustee for benefit of creditors, and that she would not be prejudiced by stay — Application granted — Wife’s claim was provable in bankruptcy and as such, she should be invited by trustee to file claim and be given same consideration as was given to any other creditor — Continued operation of stay would materially prejudice wife in that it would prevent her from pursuing her family property claim in respect of exempt assets that did not form part of estate in bankruptcy — Stay was lifted to allow wife to pursue her claim against exempt assets — Wife was permitted to pursue claim against non-exempt assets in same way as any other creditor. Shirkie v. Shirkie, 2015 CarswellSask 607 ...... Sask. Q.B. 274 Family law Division of family property — Order for division of property — Enforce- ment of order — Against bankrupt spouse –––– Parties were married in 1985 and separated in 2008 — Husband petitioned for divorce and equal division of matrimonial home and property — Wife brought counter-petition seeking xiiREPORTS OF FAMILY LAW 67 R.F.L. (7th)

unequal division of family property — In May 2014, husband was ordered to pay interim spousal support of $7,500 per month — Approximately five weeks after support order was issued, husband filed assignment in bankruptcy — Wife applied for order that stay of her family property claim, caused by husband’s assignment in bankruptcy, be lifted and that matter be permitted to continue, but only with respect to property that was exempt from seizure by trustee in bankruptcy — Trustee said application was improperly before court in that wife was neither creditor to estate in bankruptcy nor was she director of corporation with interest in bankrupt estate — Trus- tee said wife had no vested title or interest in assets with trustee for benefit of creditors, and that she would not be prejudiced by stay — Application granted — Wife’s claim was provable in bankruptcy and as such, she should be invited by trustee to file claim and be given same consideration as was given to any other creditor — Continued operation of stay would materially prejudice wife in that it would prevent her from pursuing her family property claim in respect of exempt assets that did not form part of estate in bankruptcy — Stay was lifted to allow wife to pursue her claim against exempt assets — Wife was permitted to pursue claim against non-exempt assets in same way as any other creditor. Shirkie v. Shirkie, 2015 CarswellSask 607 ...... Sask. Q.B. 274 Family law Divorce — Practice and procedure — Miscellaneous –––– Divorce was granted at husband’s request — Wife’s answer opposing divorce on substantive grounds was not brought to judge’s attention — Before divorce became final, wife brought motion and obtained order staying divorce order — Hus- band died while stay was in effect — Wife brought motion to terminate divorce order or for declaration that marriage was terminated by husband’s death — Motion was dismissed — Wife appealed — Appeal allowed — Di- vorce order did not dissolve marriage — Divorce order was stayed until further order of court, which prevented it from taking effect and dissolving marriage — At time of husband’s death, stay had not been lifted and parties were still married — Husband’s death ended marriage — Divorce order was permanently stayed. White v. White, 2015 CarswellOnt 14562 ...... Ont. C.A. 255 Family law Domestic contracts and settlements — Validity — Formal validity — For- mation of contract –––– Husband and wife began to cohabit in 2010 when wife moved into husband’s home — Husband had inherited home from his mother and it was valued at $1,225,000 when relationship began — Parties married in December 2010 — Relationship ended in February 2013 — Hus- band had no source of income other than Canada Pension Plan payments — He sold his home in 2011 and kept proceeds of sale of $1,537,000 — Wife had pension income of $70,000 per year — After husband sold his home, parties resided in wife’s condominium — Husband paid sum of $60,000 to wife to reduce her mortgage but she used money for other purposes — Wife sold condominium after separation for and kept proceeds of $30,000 — Wife applied for summary judgment seeking equal division of family property — 67 R.F.L. (7th)DIGESTS OF CASES xiii

Issue for determination was whether parties made binding agreement in Jan- uary 2015 settling financial issues between them — Husband claimed that parties made binding agreement in 2015 such that no assets would be divided — Wife denied that agreement was reached and that if there was agreement, it should be set aside — Binding agreement was reached by parties in 2015 when husband accepted wife’s counteroffer — Precise date on which to obtain divorce order, or precise month during which agreement must be embodied in court order and divorce pronounced, was not fundamental to formation of contract — Conclusion was reached reviewing correspondence and email exchange between parties’ counsel — Reference by wife’s counsel to “possible settlement” did not indicate that settlement agreement was only possibility — Email was consistent with intended settlement conference at which court would be requested only to make consent order embodying terms of agreement that parties had already reached — Es- sence of agreement was that status quo in January 2015 prevailed — Each party would retain all assets, real and personal, in their name free and clear of any claims by other party — Given brief relationship, retention by wife of entire proceeds of sale from her condominium, absence of any financial contribution by her to value of husband’s property, and decision of parties to agree to preserve status quo led to fair division of assets on separation. Stanbridge v. Stanbridge, 2015 CarswellBC 2396 ..... B.C. S.C. 432 Family law Support — Child support under federal and provincial guidelines — Ap- plication of guidelines — General principles –––– Parties had two children, S and C, who reached age of majority — Children graduated high school and continued to reside with mother — S gave birth to child in her last year of high school, was not employed since leaving high school, and planned to attend technology centre to take course in graphic and digital design — Fa- ther found out about grandchild through social media one month before birth — Children and father had little, meaningful contact with each other — C worked for mother and placed earning in account earmarked for education — C child had goal of attending college for aircraft maintenance but had not completed requisite courses for doing so — Pursuant to 2011 order, father was to pay support in amount of $1,100 in respect of children — Fa- ther sought to end his obligation to pay child support retroactively to birthday of when children reached age of majority — Father was to pay $900 per month directly to C for 15 months conditional on her acceptance to college in aircraft maintenance course — Father’s income was now $74,600 — Mother’s income was $67,851.01 — S had to care for her child and was not child of marriage as she was not pursuing post-secondary education and had no immediate plans for future education — As such, father was no longer required to pay child support for her — If C entered college she was still child of marriage and father was obliged to contribute to her support — Mother and father were to contribute to C’s post-secondary education. Zwack v. Butler, 2015 CarswellBC 2560 ...... B.C. S.C. 356 xivREPORTS OF FAMILY LAW 67 R.F.L. (7th)

Family law Support — Child support under federal and provincial guidelines — Ret- roactive award — Delay in bringing application –––– Parties had two children — In 1983 father was ordered to pay child support of $400 per month per child — Father paid child support until 1988, but continued to provide financial assistance to children who were now 35 and 39 years of age — Mother took no steps to enforce payment of outstanding support she claimed was owed until 2014 — Father applied to cancel arrears — Application granted — Mother had not taken steps to enforce matter for over 26 years — Father reasonably believed he was doing what he was obligated to do in circumstances, and children provided objective evidence that supported father’s belief — Father was not responsible for any blameworthy conduct — Father paid significantly more than Federal Child Support Guidelines support during years he paid support and he paid almost as much as if he had been required to pay support until 1997. Allen v. Dupont, 2014 CarswellYukon 137 ...... Y.T. S.C. 446 Family law Support — Child support under federal and provincial guidelines — Vari- ation or termination of award — Delay –––– Parties had two children — In 1983 father was ordered to pay child support of $400 per month per child — Father paid child support until 1988, but continued to provide financial assistance to children who were now 35 and 39 years of age — Mother took no steps to enforce payment of outstanding support she claimed was owed until 2014 — Father applied to cancel arrears — Application granted — Mother had not taken steps to enforce matter for over 26 years — Father reasonably believed he was doing what he was obligated to do in circumstances, and children provided objective evidence that supported father’s belief — Father was not responsible for any blameworthy conduct — Father paid significantly more than Federal Child Support Guidelines support during years he paid support and he paid almost as much as if he had been required to pay support until 1997. Allen v. Dupont, 2014 CarswellYukon 137 ...... Y.T. S.C. 446 Professions and occupations Barristers and solicitors — Employment of lawyer — Retainer — Extent of retainer –––– Husband retained defendant solicitor to draft marriage contract in 1999 for his third marriage — Husband married wife in June 1999 and contract was signed in December 1999 — Husband was adversely affected by financial downturn in 2008, as his asset base declined and investments in speculative stocks were worth little — In July 2009, husband suffered cardiac arrest, and, while he was recovering, wife advised that she was leaving marriage — Husband was unable to meet capital requests of company in which he initially began as majority shareholder, and resultingly, his holdings were diluted — Solicitor had acted for husband in family law proceedings against second wife, and solicitor did not ask husband to sign new retainer setting out scope of advice he was being asked to give with respect to contract — Solicitor knew that husband had significant net worth, but did not know extent and nature of wealth — Husband made clear that he wanted 67 R.F.L. (7th)DIGESTS OF CASES xv

protection from equalization of his substantial assets as well as certainty in future — Solicitor denied that he knew that husband was financial risk-taker or that his plan was to invest in startup businesses and technology companies that were high risk — Husband commenced action for damages against solicitor in part on basis that solicitor was negligent in not including downside clause in marriage contract — Action dismissed — While it would be preferable to have written retainer or notes of initial meeting given parties’ disagreement as to what transpired, absence of them did not mean that solicitor’s evidence ought to be rejected or given little weight — When he retained solicitor in 1999, it was husband who dictated terms of contract — Husband had his own ideas of what he would agree to, and was not client who would follow counsel’s recommendations without question — Husband’s evidence regarding his experience with marriage contracts, and his professed utter reliance on solicitor was not credible — Husband was not neophyte in area of marriage contracts as he suggested in his testimony — Husband was sophisticated businessman, skilled negotiator, and client who had experience with expensive, protracted litigation with former spouse — Husband had retained solicitor, who was expert in family law field, to draft marriage contract to ensure that he did not have to share wealth with his wife and to provide certainty and limitation on amount he would have to pay to her in event of marriage breakdown — Husband’s credibility was seriously undermined by his testimony surrounding prior marriage contract. Rider v. Grant, 2015 CarswellOnt 14310 ...... Ont. S.C.J. 309 Professions and occupations Barristers and solicitors — Negligence — In conduct of action — Miscella- neous –––– Husband retained solicitor to draft marriage contract in 1999 for his third marriage — Husband married wife in June 1999 and contract was signed in December 1999 — Husband was adversely affected by financial downturn in 2008 — In July 2009, wife advised that she was leaving marriage — Solicitor did not know extent and nature of husband’s wealth — Husband commenced action for damages against solicitor — Action dismissed — Husband was not prepared to make financial disclosure to wife or to solicitor, and there was nothing in evidence to suggest that husband gave solicitor detailed information about nature of his investments such that solicitor ought to have discussed with him use of downside risk clause — Hus- band was extremely successful, self-made man who made own decisions about investments — It was not incumbent upon solicitor to tell husband that financial success may end — For someone of solicitor’s experience, explanation of equalization of property and net family property would be part of routine speech to client — Solicitor was advised shortly before wedding of serious concerns that wife had regarding contract, and solicitor would have had to discuss contents of letter with husband — Issue of security for payment of lump sum to wife would have to have been discussed then, and solicitor’s evidence that he suggested that husband set aside three million dollars to allay that concern was accepted — Husband’s evidence to effect that he thought that assets he brought in to marriage would remain his alone, and that he would only be obliged to make lump sum payment to wife in event xviREPORTS OF FAMILY LAW 67 R.F.L. (7th)

that his wealth increased beyond $40 million was not accepted — Husband negotiated contract with wife and there was no evidence to suggest that he requested variation clause despite his knowledge of such clauses — Solicitor admitted that he did not discuss form of protection from contract were husband’s assets to diminish — Under circumstances, husband was in best position to postulate on what may happen to his assets in future — Standard of care did not demand that solicitor advise wealthy client that he was at risk of having to pay significant amounts under contract if market declined or wealth diminished — Solicitor’s obligation was to explain law and not to advise client on how to manage his investments — Solicitor explained to husband how Family Law Act worked and husband determined quantum of lump sum he was prepared to pay without solicitor’s input — Contract was clear about terms of when payment was due in event of marriage breakdown and husband’s evidence to effect that he did not understand that he was required to make lump payment to wife in event of marriage breakdown, regardless of his financial circumstances, was not accepted — Applicable standard of care did not require solicitor to advise husband that he could include downside risk clause and solicitor’s provision of legal services to husband met standard of care of reasonably competent solicitor in circumstances. Rider v. Grant, 2015 CarswellOnt 14310 ...... Ont. S.C.J. 309 Restitution and unjust enrichment General principles — Requirements for unjust enrichment — Conferral of benefit –––– Taxpayer and personal respondent L purchased home in joint tenancy while in common law relationship — Parties separated and separation agreements were drafted in 2009 and 2012, whereby taxpayer released interest in home to L in exchange for her release of claims on his business and his pension — Agreements never formally executed — Bank obtained judgment against taxpayer on guarantee and registered it against his interest in home — Canada Revenue Agency (CRA) also registered judgment against taxpayer’s interest — Taxpayer brought motion for declaration that his interest was held in trust for L and order that bank and CRA judgments be discharged — Motion granted — In absence of formal documentation creating trust, court may infer intention to create trust from surrounding circumstances — Parties had acted on separation agreements by L paying mortgage payments and modifying court-ordered support amounts — Statutory presumption that persons registered on title of property are presumed to hold its legal and equitable interest — Burden on party seeking to challenge state of title to prove otherwise — Presumption can be displaced by equitable principles, including enforcement of agreement between parties to prevent unjust enrichment if face of title is upheld — Taxpayer would be unjustly enriched if property interest held to still be his — Monetary award would be inappropriate in circumstances — Judgments were subsequent to agreements — Taxpayer had no interest in property to be attached. McInerney v. Laass, 2015 CarswellBC 2700 ...... B.C. S.C. 290 Tax Income tax — Administration and enforcement — Collection of tax — Seizure of assets –––– Taxpayer and personal respondent L purchased home 67 R.F.L. (7th)DIGESTS OF CASES xvii

in joint tenancy while in common law relationship — Parties separated and separation agreements were drafted in 2009 and 2012, whereby taxpayer released interest in home to L in exchange for her release of claims on his business and his pension — Agreements never formally executed — Bank obtained judgment against taxpayer on guarantee and registered it against his interest in home — Canada Revenue Agency (CRA) also registered judgment against taxpayer’s interest — Taxpayer brought motion for declaration that his interest was held in trust for L and order that bank and CRA judgments be discharged — Motion granted — In absence of formal documentation creating trust, court may infer intention to create trust from surrounding circumstances — Parties had acted on separation agreements by L paying mortgage payments and modifying court-ordered support amounts — Statu- tory presumption that persons registered on title of property are presumed to hold its legal and equitable interest — Burden on party seeking to challenge state of title to prove otherwise — Presumption can be displaced by equitable principles, including enforcement of agreement between parties to prevent unjust enrichment if face of title is upheld — Taxpayer would be unjustly enriched if property interest held to still be his — Monetary award would be inappropriate in circumstances — Judgments were subsequent to agreements — Taxpayer had no interest in property to be attached. McInerney v. Laass, 2015 CarswellBC 2700 ...... B.C. S.C. 290

White v. White 255

[Indexed as: White v. White] Neville Alphonso White, Respondent and Sonia White, Appellant Ontario Court of Appeal Docket: CA C59752 2015 ONCA 647 K. Feldman, J.M. Simmons, B.W. Miller JJ.A. Heard: August 26, 2015 Judgment: September 25, 2015 Family law –––– Divorce — Practice and procedure — Miscellaneous –––– Divorce was granted at husband’s request — Wife’s answer opposing divorce on substantive grounds was not brought to judge’s attention — Before divorce became final, wife brought motion and obtained order staying divorce order — Husband died while stay was in effect — Wife brought motion to terminate divorce order or for declaration that marriage was terminated by husband’s death — Motion was dismissed — Wife appealed — Appeal allowed — Di- vorce order did not dissolve marriage — Divorce order was stayed until further order of court, which prevented it from taking effect and dissolving marriage — At time of husband’s death, stay had not been lifted and parties were still married — Husband’s death ended marriage — Divorce order was permanently stayed. Cases considered: Kindl, Re (1982), 39 O.R. (2d) 219, 31 R.F.L. (2d) 11, 13 E.T.R. 101, 140 D.L.R. (3d) 92, 1982 CarswellOnt 340, [1982] O.J. No. 3503 (Ont. H.C.) — referred to L. (M.) c. V. (N.) (1997), 145 D.L.R. (4th) 739, (sub nom. Droit de la famille - 2574) [1997] R.D.F. 20, 1997 CarswellQue 4, 1997 CarswellQue 4700 (C.A. Que.) — referred to Statutes considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) s. 12(1) — considered s. 14 — considered 256 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

Rules considered: Rules of Civil Procedure, R.R.O. 1990, Reg. 194 R. 11.01 — referred to

APPEAL by wife from order of motion judge, dismissing wife’s motion to terminate divorce order, and for declaration that marriage was terminated by husband’s death.

Matthew Tubie, for Appellant Lance Carey Talbot, for Melville White and Karen White

Per curiam:

1 The appellant Sonia White and Neville White were married. At the request of the husband, a divorce was granted on June 10, 2013 by Pais- ley J. Unfortunately, the Answer opposing the divorce on substantive grounds was not brought to the attention of Paisley J. Before the divorce became final, the appellant brought a motion and obtained an order on July 4, 2013 from Herman J. staying the Divorce Order “pending further court order”. While the stay remained in effect, Mr. White died. 2 Following Mr. White’s death, a dispute arose between the appellant and some of Mr. White’s children, the respondents in this appeal, as to whether the marriage was terminated by death or by divorce. 3 The appellant eventually brought a motion for an order “discontinu- ing or terminating the divorce order granted by the order of Justice Her- man [sic] dated June 10, 2013”. 4 She applied in the alternative for a declaration that she and Mr. White had not been divorced, and that their marriage was terminated upon his death. 5 The motion judge, whose decision is appealed here, dismissed the motion. In essence she found that Rule 11.01 of the Rules of Civil Proce- dure, R.R.O. 1990, Reg. 194, was a bar to the motion and that a declaration was not the appropriate remedy as the issued orders speak for themselves. 6 On appeal, the appellant asks that the order of the motion judge be set aside (including costs awarded to Karen White), and that this court make a declaration that her marriage to Mr. White was terminated by his death. 7 At the hearing of the appeal, the respondents, two of Mr. White’s children, Melville White and Karen White, who were served with the White v. White Per curiam 257

motion in the court below, requested that the stay of the Divorce Order be lifted with retroactive effect.

(i) Analysis 8 Although this endorsement is given in the context of an appeal from the order of Frank J., it is intended to clarify all orders in these proceedings, including the ex parte order of Perkins J. dated February 4, 2015 made after the order under appeal. 9 The Divorce Order did not dissolve the marriage. 10 Section 14 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) provides that “[o]n taking effect, a divorce granted under this Act dissolves the marriage of the spouses.” 11 In the ordinary course, the effect of s. 12(1) of the Divorce Act is that a divorce takes effect on the 31st day following the judgment granting the divorce. In the intervening period, the parties are still married. If one of the parties dies during that period, the judgment granting the divorce cannot take effect: see Kindl, Re (1982), 39 O.R. (2d) 219 (Ont. H.C.), at p. 224; L. (M.) c. V. (N.) (1997), 145 D.L.R. (4th) 739 (C.A. Que.), at p. 740. 12 In this instance, the Divorce Order had been stayed until further order of the court, which prevented it from taking effect and from dissolving the marriage. 13 At the time of Mr. White’s death, the stay had not been lifted and the parties were still married. It follows that it is Mr. White’s death that ended the marriage. 14 The only relief sought in the divorce application was a termination of the parties’ marriage through divorce. The marriage having been terminated by the death of Mr. White, the Divorce Order that was granted in error should become permanently stayed. In these circumstances, no order to continue is necessary.

(ii) Disposition 15 The appeal is allowed, the order of Frank J. is set aside, and the Di- vorce Order is permanently stayed. This order is without prejudice to any relief that the appellant may seek to claim against the estate of Mr. White. The costs order below is set aside. Costs of the appeal and the 258 REPORTS OF FAMILY LAW 67 R.F.L. (7th) proceeding below are granted to the appellant in the amount of $2,500 inclusive of disbursements and HST. Appeal allowed. M. (C.) v. CAS of Waterloo 259

[Indexed as: M. (C.) v. Children’s Aid Society of the Regional Municipality of Waterloo] C.M. and B.J.V., Appellants (Appellants) and The Children’s Aid Society of the Regional Municipality of Waterloo, Respondent (Respondent) Ontario Court of Appeal Docket: CA C60343 2015 ONCA 612 K. Feldman, Janet Simmons, B.W. Miller JJ.A. Heard: August 24, 2015 Judgment: September 14, 2015 Family law –––– Children in need of protection — Application for return of child — Under permanent order — On child’s placement for adoption –––– Parents’ two-year-old and four-year-old were apprehended and placed in foster care in September 2010 and, three years later, made Crown wards without access for purpose of adoption — Parents appeal was dismissed — Trial judge found mother’s claim that children should not be adopted because they had aboriginal heritage was raised for first time on appeal and was rejected because there was little evidence of mother’s aboriginal heritage — Trial judge found lower court relied on assessor’s report of mother’s inability to connect emotionally to children and to gain their attention — Trial judge found children were doing well in foster care, there was no evidence that continued separation of children from biological parents was traumatic for them, and opposite appeared to be case — In finding that adoption was in best interests of children, trial judge found numerous serious and chronic deficiencies in appellants’ parenting abilities, including inability to maintain safe, healthy home or attend counselling — Trial judge found it was overwhelmingly in children’s best interests to be adopted by current foster parents — Parents appealed — Appeal dismissed — Trial judge made no error in failing to identify mother or children as Indian or as native persons — Mother’s self-identification as aboriginal did not affect findings regarding children — Access order for parents was not available under legislation and application of criminal law principles relating to aboriginal offenders were not applicable — Trial judge did not err regarding assessment of mother’s demeanor — Trial judge properly considered best interests of children and findings were supported by evidence — Delay was matter of concern. Aboriginal law –––– Family law — Children in need of protection –––– Prov- ing aboriginal heritage. 260 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

Family law –––– Children in need of protection — Practice and procedure in custody hearings — General principles. Cases considered: Children’s Aid Society of Oxford County v. C. (W.T.) (2013), 2013 ONCA 491, 2013 CarswellOnt 10258, 308 O.A.C. 246, 33 R.F.L. (7th) 259, 288 C.R.R. (2d) 144, [2013] O.J. No. 3438 (Ont. C.A.) — considered Daniels v. Canada (Minister of Indian Affairs and Northern Development) (2014), 2014 FCA 101, 2014 CAF 101, 2014 CarswellNat 1076, 2014 Car- swellNat 1077, 371 D.L.R. (4th) 725, 457 N.R. 347, [2014] 3 C.N.L.R. 139, 309 C.R.R. (2d) 200, (sub nom. Daniels v. Canada (Indian Affairs and Northern Development)) [2014] 4 F.C.R. 97 (F.C.A.) — considered R. v. Gladue (1999), [1999] S.C.J. No. 19, 1999 CarswellBC 778, 1999 Car- swellBC 779, 133 C.C.C. (3d) 385, 171 D.L.R. (4th) 385, [1999] 2 C.N.L.R. 252, 23 C.R. (5th) 197, 238 N.R. 1, [1999] 1 S.C.R. 688, 121 B.C.A.C. 161, 198 W.A.C. 161, [1999] A.C.S. No. 19 (S.C.C.) — considered Winnipeg Child & Family Services (Central Area) v. W. (K.L.) (2000), 2000 SCC 48, 2000 CarswellMan 469, 2000 CarswellMan 470, 191 D.L.R. (4th) 1, [2001] 1 W.W.R. 1, 260 N.R. 203, 10 R.F.L. (5th) 122, 78 C.R.R. (2d) 1, [2000] S.C.J. No. 48, [2000] 2 S.C.R. 519, 150 Man. R. (2d) 161, 230 W.A.C. 161, REJB 2000-20378, 2000 CSC 48 (S.C.C.) — considered Statutes considered: Child and Family Services Act, R.S.O. 1990, c. C.11 Generally — referred to s. 3(1) “Indian” — considered s. 3(1) “native person” — considered s. 47(2)(c) — considered s. 59 (2.1) [en. 2006, c. 5, s. 17(2)] — considered s. 59 (2.1)(a) [en. 2006, c. 5, s. 17(2)] — considered s. 59 (2.1)(b) [en. 2006, c. 5, s. 17(2)] — considered s. 209 — considered Constitution Act, 1867, (U.K.), 30 & 31 Vict., c. 3, reprinted R.S.C. 1985, App. II, No. 5 s. 91 ¶ 24 — considered Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to Indian Act, R.S.C. 1985, c. I-5 s. 2(1) “Indian” — referred to

APPEAL by parents form judgment reported at M. (C.M.E.) v. Children’s Aid Society of the Regional Municipality of Waterloo (2015), 2015 ONSC 1942, 2015 CarswellOnt 4250 (Ont. S.C.J.), dismissing appeal by parents from judgment determining custody of children. M. (C.) v. CAS of Waterloo Per curiam 261

Gloria E. Ichim, for Appellants Jeffrey W. Boich, for Respondent

Per curiam: A. Introduction 1 On November 28, 2013, following a trial that began in August 2012 - and based on a protection application filed in early September 2010 - the appellants’ two children were found in need of protection. In all the circumstances, the trial judge ordered that the children be designated Crown wards without access. 2 On March 25, 2015, a Superior Court appeal judge dismissed the appellants’ appeal from that order. 3 On appeal to this court, the appellants ask that the Crown wardship order be varied to provide them with access to their children.

B. Issues and Discussion 4 The appellants raise three issues on appeal.

Issue 1: Did the trial judge err in determining the Indian or native status of the children? 5 First, the appellants argue that the trial judge erred in law in failing to identify the appellant mother as Indian or native. They submit that identifying her as such would have triggered certain special provisions of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “CFSA”) relating to Indian and native children. 6 In the alternative, the appellants argue that the trial judge erred in failing to apply the principles from R. v. Gladue, [1999] 1 S.C.R. 688 (S.C.C.), to the circumstances of this case. 7 We do not accept these arguments. As a starting point, the appellants did not raise these issues at trial. In any event, neither the mother nor the children fall within the definition of Indian or native person under the CFSA. Further, in the face of the statutory definitions, Gladue principles do not assist in determining whether the children are Indian or native persons. Finally, we are not persuaded that Gladue principles affect the determination of whether an access order would be appropriate in this case. 8 Under s. 47(2)(c) of the CFSA, the court hearing a protection application is required to determine “[a]s soon as practicable, and in any event 262 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

before determining whether a child is in need of protection ... whether the child is an Indian or a native person and, if so, the child’s band or native community”. 9 “Indian” and “native person” are defined terms in the CFSA. Section 3 provides that “‘Indian’ has the same meaning as in the Indian Act (Canada)” and that “‘native person’ means a person who is a member of a native community but is not a member of a band, and ‘native child’ has a corresponding meaning”. Section 209 of the CFSA permits the Min- ister to “designate a community, with the consent of its representatives, as a native community for the purposes of this Act.” 10 Although represented by counsel, at trial the appellants did not advance any argument that either the mother or the children fell within the definition of Indian or native person under the CFSA. Instead, in response to the required inquiry from the trial judge, the appellants’ counsel confirmed that the information in the Society’s application concerning status was correct. In relation to both children, the Society’s application stated “no Indian status”.1 11 Further, while the mother testified at trial that she is part native, she provided no additional evidence about her aboriginal heritage or about any connection with a native community.2 12 In these circumstances, the trial judge made no error in failing to identify the mother or children as Indian or as native persons.

1 In response to the Society’s application and amended application, the appellants filed an Answer and Plan of Care and an Amended Answer and Plan of Care. In both documents, the appellants stated “n/a” in the box entitled “Child’s Native Status” in relation to both children. 2 The only evidence given at trial concerning the appellant mother’s aboriginal heritage occurred during the following exchange: Q. You heard a number of witnesses describe what they observed during your visits, how do you feel about their description of your behaviour during the visits? A. Like when they said I had a flat effect ...... A. Well, there’s a reason behind the flat effect. I am part native and if you listen to other natives, they have that same flatness in their voice - monotone. M. (C.) v. CAS of Waterloo Per curiam 263

13 On appeal to the Superior Court, the appellant mother filed an affidavit indicating that her father is Ojibway. She does not claim to be a status Indian within the meaning of the Indian Act, R.S.C. 1985, c. I-5. Rather, she argues that the definition of Indian under the Indian Act has been extended by case law and that Gladue extends the meaning of native to include persons self-identifying as native. 14 However, contrary to the appellants’ submissions, Daniels v. Canada (Minister of Indian Affairs and Northern Development), 2014 FCA 101, 371 D.L.R. (4th) 725 (F.C.A.), does not stand for the proposition that non-status Indians are included as “Indians” within the meaning of s. 91(24) of the Constitution Act, 1867. Moreover, Gladue was decided under the Criminal Code and does not alter the statutory definitions set out in the CFSA. In any event, we note that the relevant inquiry under the CFSA is the children’s status, not the mother’s status. The fact that the mother may self-identify as native does not determine her children’s status. 15 Finally, s. 59 (2.1) of the CFSA provides that “[a] court shall not make ... an access order ... with respect to a Crown ward unless the court is satisfied that, (a) the relationship between the person and the child is beneficial and meaningful to the child; and (b) the ordered access will not impair the child’s future opportunities for adoption.” 16 At the time the trial judge’s decision was delivered, the children had been in care for about three years and three months. When apprehended, the youngest child was less than two years old. The trial judge declined to make an order for access for two reasons. First, she was not satisfied that a relationship existed between the appellants and their children that was beneficial or meaningful to the children. Second, because no adoption plan had by then been put forward, she was unable to determine whether access would impair the children’s future opportunities for adoption. 17 As of the date of the appeal to the Superior Court, the children had not had access with the appellants for more than a year and there was evidence that neither child had asked for contact with the appellants since the last visit. Moreover, following an inquiry directed by the court, the proposed adoptive parents (the children’s foster parents since being taken into care) wrote a letter to the Society’s counsel indicating they were unwilling to meet with counsel or the appellants and that “any court ordered openness or access would jeopardize the stability of the placement.” 264 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

18 Under these circumstances, an access order was not available under the CFSA - and Gladue principles did not in any way assist in making that determination.

Issue 2: Did the trial judge err by drawing negative inferences based on the appellant mother’s “flat affect”? 19 The second issue raised by the appellants on appeal is that the trial judge erred in failing to recognize the mother’s “flat affect” as an immutable feature of the mother’s cultural identity as an Ojibway. The appellants argue that the trial judge erred in drawing negative inferences about the mother and her ability to connect with her children based on an un- diagnosed “flat affect” and monotone voice, both of which the appellants claim are immutable features of the mother’s cultural identity that do not affect her parenting abilities. 20 We do not accept this argument. This issue was fully canvassed before the Superior Court appeal judge. The Superior Court appeal judge placed little weight on fresh evidence the appellants sought to introduce on appeal from “a self-described expert on many, if not all aboriginal issues” concerning flat affect as it pertains to aboriginal peoples. He did so in part because no effort had been made to adduce such evidence at trial, or to demonstrate on appeal the witness’s credentials. 21 The Superior Court appeal judge noted that the issue of the mother’s flat affect and her ability to connect with her children had been raised in a Parental Capacity Assessment prior to trial. Despite that, the only evidence the appellants led at trial in response was a brief statement by the mother that she is part native and that natives tend to speak in a monotone voice. As noted by the Superior Court appeal judge, this evidence was insufficient to allay the trial judge’s concerns arising from the assessor’s evidence that the mother was unable to connect emotionally with her children and gain their attention. 22 Further, while the issue of the mother’s flat affect was mentioned in the Parental Capacity Assessment, many other concerns were also raised. In his reasons dismissing the parents’ appeal, the Superior Court appeal judge fully addressed the issue of whether the trial judge failed to consider the best interests of the children in making an order for Crown wardship. 23 We see no basis on which to interfere with the Superior Court appeal judge’s conclusions. M. (C.) v. CAS of Waterloo Per curiam 265

Issue 3: Did the trial judge err in failing to consider the best interests of the children in relation to access? 24 The final issue raised by the appellants is that the trial judge erred in failing to consider the best interests of the children in relation to access. The appellants argue that the trial judge erred in failing to consider the best interests of the children in the context of their aboriginal heritage and in failing to consider that ongoing contact with their birth parents would assist in preserving their sense of historical and cultural uniqueness. 25 We do not agree. The trial judge was aware of the children’s cultural heritage. She noted in her reasons that “[w]hile the children are not ‘In- dian or native’ as defined by the CFSA, they do have a link to that heritage through their mother. Family connections are an important consideration in assessing the best interests of the children.” 26 Despite that observation, the trial judge concluded that, considering all the circumstances of the case, an order for Crown wardship was necessary and in the best interests of the children. That finding is supported by the evidence and the appellants have not sought to set aside the order for Crown wardship on appeal. 27 As we have said, once the trial judge determined that an order for Crown wardship was necessary, in the face of s. 59 (2.1) of the CFSA and in the light of her other findings, an access order was not available. On appeal to the Superior Court, the trial judge’s findings and conclusions were upheld - and supplemented. As we have said, the Superior Court appeal judge directed that an inquiry be made concerning whether the proposed adoptive parents (the children’s foster parents since apprehension) would proceed with the adoption if an order were made for Crown wardship with access. The proposed adoptive parents responded in a letter to the Society’s counsel that “any court ordered openness or access would jeopardize the stability of the placement.” Further, the Su- perior Court appeal judge stated that the court had been advised that the proposed adoptive parents were not prepared to proceed with the adoption on that basis. He concluded that making an order for Crown wardship would impair the children’s prospects for adoption. We see no basis on which to interfere with his determination or that of the trial judge.

C. Delay 28 Before disposing of this appeal, like the Superior Court appeal judge, we must comment on the issue of delay. 266 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

29 In his reasons, the Superior Court appeal judge set out a brief chronology of the salient events in this case. We have included that chronology in Appendix ‘A’. In short, the children went into care with their current foster parents more than five years ago on September 2, 2010. They were then 1.8 and 3.8 years old. They are now six and eight and are still in legal limbo. Such delay is unacceptable in the lives of these children. 30 After setting out his chronology, the Superior Court appeal judge noted that none of the legislated time limits under the CFSA “were even remotely adhered to” in this case. He expressed concern about the failure to follow the statutory requirements as well as the overall delay. He also expressed the hope that counsel would bring his concerns to the attention of those who can affect meaningful change. 31 We echo the Superior Court appeal judge’s concerns. We go further and state that it is imperative that judges, court administrators, counsel (particularly counsel for Children’s Aid Societies) and assessors take responsibility for ensuring adherence to statutorily required timelines. 32 We summarize below the most significant delays that occurred in this case: • More than a year passed from the date of apprehension on Sep- tember 2, 2010 until the date when the Parental Capacity Assess- ment was completed on October 27, 2011. • The Society amended its protection application to instead request Crown Wardship on February 3, 2012. This was almost a year- and-a-half after the date of apprehension and already past the 12- month statutory limit for Society custody and care. More than six months passed between this date and the first hearing date at the Ontario Court of Justice on August 23, 2012. • Almost six months passed between the first and last days of the Crown wardship hearing at the Ontario Court of Justice (from Au- gust 23, 2012 until February 4, 2013) with no more than a few days of hearings each month. • More than nine months passed from the conclusion of the hearing to the release of the Ontario Court of Justice Reasons. • More than a year passed from the filing of the Notice of Appeal with the Superior Court of Justice on December 16, 2013 to the first Superior Court of Justice hearing date on February 12, 2015. 33 Where a statute requires that events occur within a specified time frame, it is simply unacceptable that justice system participants fail to M. (C.) v. CAS of Waterloo Per curiam 267

adhere to those time frames. As Justice L’Heureux-Dub´e commented on behalf of the majority of the Supreme Court in Winnipeg Child & Family Services (Central Area) v. W. (K.L.), 2000 SCC 48, [2000] 2 S.C.R. 519 (S.C.C.), at para. 136, “[t]he six-month delay prior to the hearing to determine whether John was in need of protection appears, on its face, to be highly unreasonable, particularly in the case of a newborn child.” This court spoke about the importance of timeliness in child welfare cases in Children’s Aid Society of Oxford County v. C. (W.T.), 2013 ONCA 491, [2013] O.J. No. 3438 (Ont. C.A.). 34 That requires, among other things, that assessment reports be prepared with dispatch; that Children’s Aid Societies make decisions in accordance with statutory timelines about how to proceed in a particular case; that meaningful case management occur in which timetables are set and witness lists are fully canvassed; that trials be scheduled so that trial days are not stretched over months; and that trial judges receive adequate time to prepare reasons in a timely fashion. 35 We acknowledge that additional factors may contribute to delay in particular cases. It is our hope, however, that all those involved in the child welfare system will do their part to minimize delay and promote finality for children. The children involved in this system deserve better.

D. Disposition 36 Based on the foregoing reasons, this appeal is dismissed. We make no order as to costs. Appeal dismissed.

Appendix ‘A’

The following are some of the salient chronological/time facts involved in this case: A. When the children went into care with their current foster parents on September 2, 2010, CMV was 1.8 years old and LMV was 3.8 years old. B. The trial to determine the children’s future, which heard evidence over 12 days commenced August 23, 2012 and was completed on February 4, 2013. This is approximately 165 days from the first day of evidence to the last day of evidence. C. The trial judgment was delivered on November 28, 2013, which is approximately 300 days after the completion of the trial. 268 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

On November 28, 2013, it was also three years two months and 26 days from the date the children began living with and bonding with their foster parents. CMV was then five years old and LMV was 7.1 years old. D. The last access between the Appellants and the children was on November 27, 2013, which is about 480 days before this appeal Judgment was rendered. E. The trial in this matter commenced almost 2 years after the children were taken into care and the judgment was released more than 3 years after the children were taken into care. F. The hearing of this appeal commenced on February 13, 2015; in summary, approximately 4 1/2 years after the children were taken into care. G. Rule 33(1) of the Family Law Rules indicates that a hearing in a child protection case should take place no more than 120 days after the child is taken into care. In this case approximately 720 days elapsed. This is five times what the legislation says is allowable. H. Section 70 of the Child and Family Services Act indicates that the court shall not make an order for Society Wardship that results in a child under the age of six being a society ward for the period exceeding 12 months or a child being over six being a society ward for a period exceeding 24 months. De Melo v. De Melo 269

[Indexed as: De Melo v. De Melo] Donny De Melo, Appellant and Erin De Melo, Respondent Ontario Court of Appeal Docket: CA C59650 2015 ONCA 598 E.A. Cronk, P. Lauwers, K. van Rensburg JJ.A. Heard: August 31, 2015 Judgment: September 4, 2015 Family law –––– Custody and access — Appeals — General principles –––– Mother and father of two teenage children separated after 12 years of marriage — Matrimonial action was placed on trial list — Mother’s motion for summary judgment was granted, with mother awarded sole custody and costs in amount of $20,000 inclusive and father’s access left to children’s discretion — Father appealed — Appeal dismissed — Timing of mother’s motion was not problematic, as mother had served answer, divorce claim was severed from action, and there was no legal requirement that motion for summary judgment be brought only before conduct of trial management conference — Mother’s motion did not seek to alter status quo regarding custody and access, as children resided with mother and had elected not to exercise their right of access to father during three years since separation — Motion judge did not mistakenly place onus on father, but merely found that, after mother met obligation under R.16(4) of Family Law Rules to show no genuine issue, father failed to provide evidence of specific facts showing genuine issue for trial as required by R. 16(4.1) — Motion judge’s conclusion that outcome of trial on custody and access was certainty was open to him on evidence adduced — Motion judge’s reasons demonstrated that he considered evidence of needs and circumstances of children and did not fail to consider any material evidence — Evidence overwhelmingly supported motion judge’s conclusion that forcing access with father against wishes of children would be counterproductive, detrimental and likely futile — Costs award was not plainly wrong or tainted by error in principle. Cases considered: 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, (sub nom. Hryniak v. Mauldin) 453 N.R. 51, 12 C.C.E.L. (4th) 1, (sub nom. Hryniak v. Mauldin) 314 O.A.C. 1, 95 E.T.R. (3d) 1, 21 B.L.R. (5th) 248, (sub nom. Hryniak v. Mauldin) [2014] 1 S.C.R. 87, [2014] A.C.S. No. 7, 2014 SCC 7 (S.C.C.) — referred to 270 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

Statutes considered: Children’s Law Reform Act, R.S.O. 1990, c. C.12 s. 24(2) — referred to Rules considered: Family Law Rules, O. Reg. 114/99 R. 16(1) — considered R. 16(4) — referred to R. 16(4.1) [en. O. Reg. 91/03] — referred to

APPEAL by father from judgment granting mother’s motion for summary judgment on custody and access and awarding costs to mother.

Donny De Melo, for himself Walter Drescher, for Respondent Linda Feldman, for Office of the Children’s Lawyer

Per curiam:

1 The parties married in 1999 and separated in 2011. There are two children of the marriage, now 15 and 13 years of age. 2 By summary judgment dated October 24, 2014, H. Arrell J. of the Superior Court of Justice granted sole custody of the two children of the marriage to the respondent mother and access to the appellant father at the discretion of the children, based on their initiation, among other relief. By further order dated December 2, 2014, the motion judge also awarded costs to the mother in the amount of $20,000, inclusive of disbursements and taxes. 3 The father, a self-represented litigant, appeals to this court from the motion judge’s rulings on custody and access. He raises several grounds of appeal. 4 First, the father challenges the timing of the mother’s summary judgment motion. He argues that the motion should not have proceeded since, when the motion was brought in September 2014, the matrimonial action between the parties had already been placed on the trial list and scheduled for hearing in January 2015. 5 We disagree. Under rule 16(1) of the Family Law Rules, O. Reg. 114/99, a motion for summary judgment may be brought in an action at any time after the respondent has served an answer or the time for serving an answer has expired. That is what occurred here. In this case, the De Melo v. De Melo Per curiam 271

mother had served an answer and, by consent order of the motion judge, the divorce claim was severed from the action. 6 Further, contrary to the father’s submissions, there is no strict legal requirement that a motion for summary judgment be brought only before the conduct of a settlement or trial management conference. Nor did the mother’s motion seek to alter the existing status quo regarding custody and access. The children had resided with their mother on a full-time basis and had elected not to exercise their right of access to their father since the date of separation — a period of approximately three years. The relief sought by the mother, therefore, sought to maintain, rather than alter, the status quo. 7 Second, the father submits that the motion judge erred in law by placing the onus on him to demonstrate that there was a genuine issue requiring a trial. 8 Again, we disagree. The motion judge’s reasons indicate that he was satisfied that the mother had met her obligation under rule 16(4) to demonstrate that there was no genuine issue requiring a trial in respect of custody or access. The father was obliged to respond to the mother’s motion by providing evidence of specific facts showing that there was a genuine issue for trial: rule 16(4.1). The motion judge concluded that the father failed to meet his evidentiary burden. Indeed, he held that “[t]he evidence is overwhelming that there is no genuine issue for trial. The outcome of such a trial [on custody and access] is a certainty ....” 9 This conclusion was open to the motion judge on the evidence, including the mother’s affidavit evidence, the affidavit evidence of John Butt — a clinical investigator with the Office of the Children’s Law- yer — and reports authored by Lourdes Geraldo — a reconciliation therapist — regarding the children’s circumstances, needs and preferences. Relying on this evidence, the motion judge applied the principles established in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (S.C.C.) and concluded that he was able to make a fair and just determination of the custody and access issues without resort to a trial. He did not err in so concluding. 10 Third, the father contends that the motion judge erred by failing to address the applicable criteria for determining the best interests of the children. In a related argument, he also maintains that the motion judge erred by failing to review all the relevant evidence concerning the children’s best interests. The father points particularly to evidence that he says established aggressive and assaultive conduct by the mother, alleged 272 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

efforts by her to alienate the children, and asserted ineffectiveness and wrongful conduct by Ms. Geraldo, the reconciliation therapist. 11 The motion judge’s reasons belie these contentions. They demonstrate that, in assessing the merits of the parties’ positions on custody and access, the motion judge considered the evidence of the needs and circumstances of the children in accordance with the factors described in s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C-12. There is no basis to conclude that, in so doing, he failed to consider any material evidence. For example, he took account of the evidence of the parties, Mr. Butt and Ms. Geraldo regarding: 1) the mother’s primary parenting role since separation; 2) the children’s current circumstances, needs, progress and emotional well-being; 3) the children’s wishes and preferences, namely, their consistently expressed desire for the custodial arrangements with their mother to continue; 4) the need to accord considerable weight to the wishes of these teenaged children; and 5) the father’s claim that the mother had alienated the children from him and the children’s advice to the contrary, namely, that their mother has always encouraged their contact with their father. 12 The motion judge recognized, correctly, that this is a high conflict matrimonial case; that joint custody is not appropriate in such cases except in exceptional circumstances; that such exceptional circumstances did not exist here, where the parties have no effective communication; that the ages of the children (15 and 13 years of age) and the custodial arrangements since separation strongly militated in favour of an award of custody to the mother; and that court-constructed access arrangements should not be imposed on teenaged children who have repeatedly confirmed that they do not wish contact with the non-custodial parent and that they wish to maintain existing custodial and access arrangements. 13 Having considered the relevant evidence, the motion judge concluded that it was in the best interests of the children that sole custody be granted to the mother and that forcing access with the father against the wishes of the children “would be counterproductive, detrimental to their emotional well being and likely futile in any event”. 14 The evidence overwhelmingly supported these conclusions. With respect to the issue of access, we note that the children’s opposition to De Melo v. De Melo Per curiam 273

court-ordered access was rooted in their own experiences with their father. They made it clear that they do not wish to see their father at the present time and they wish no further involvement in litigation or court- ordered interventions. The evidence established that the children are of sufficient age and maturity so as to warrant judicial respect for their positions on these matters. 15 During oral argument, the father also challenged the motion judge’s failure to award him spousal support from the mother. On the record before us, it does not appear that the issue of spousal support was properly before or fully argued before the motion judge. 16 Finally, the father also seeks to appeal from the motion judge’s costs award in favour of the mother. Although the father did not formally seek leave to appeal from the challenged costs award on a proper or timely basis, we have nevertheless considered his various grounds of attack on this award. The motion judge’s assessment of costs is a highly discretion- ary decision that attracts considerable deference from this court. As we are not persuaded that his costs award is either plainly wrong or tainted by an error in principle, there is no basis for appellate interference with it. 17 For the reasons given, the appeal is dismissed. The respondent mother is entitled to her costs of the appeal, fixed in the amount of $5,000, inclusive of disbursements and applicable taxes. No costs are sought by or awarded in favour of the Office of the Children’s Lawyer. Appeal dismissed. 274 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

[Indexed as: Shirkie v. Shirkie] Robert Shirkie, Petitioner and Barbara Shirkie, Respondent Saskatchewan Court of Queen’s Bench Docket: Regina DIV 96/08, Estate No. 22-1809025, Bankruptcy 19117 2015 SKQB 303 R.W. Elson J. Judgment: September 25, 2015 Bankruptcy and insolvency –––– Property of bankrupt — Family law issues — Matrimonial property legislation –––– Parties were married in 1985 and separated in 2008 — Husband petitioned for divorce and equal division of matrimonial home and property — Wife brought counter-petition seeking unequal division of family property — In May 2014, husband was ordered to pay interim spousal support of $7,500 per month — Approximately five weeks after support order was issued, husband filed assignment in bankruptcy — Wife applied for order that stay of her family property claim, caused by husband’s assignment in bankruptcy, be lifted and that matter be permitted to continue, but only with respect to property that was exempt from seizure by trustee in bankruptcy — Trustee said application was improperly before court in that wife was neither creditor to estate in bankruptcy nor was she director of corporation with interest in bankrupt estate — Trustee said wife had no vested title or interest in assets with trustee for benefit of creditors, and that she would not be prejudiced by stay — Application granted — Wife’s claim was provable in bankruptcy and as such, she should be invited by trustee to file claim and be given same consideration as was given to any other creditor — Continued operation of stay would materially prejudice wife in that it would prevent her from pursuing her family property claim in respect of exempt assets that did not form part of estate in bankruptcy — Stay was lifted to allow wife to pursue her claim against exempt assets — Wife was permitted to pursue claim against non-exempt assets in same way as any other creditor. Bankruptcy and insolvency –––– Effect of bankruptcy on other proceedings — Proceedings against bankrupt — Family law claims –––– Parties were married in 1985 and separated in 2008 — Husband petitioned for divorce and equal division of matrimonial home and property — Wife brought counter-petition seeking unequal division of family property — In May 2014, husband was ordered to pay interim spousal support of $7,500 per month — Approximately five weeks after support order was issued, husband filed assignment in bankruptcy — Wife applied for order that stay of her family property claim, caused Shirkie v. Shirkie 275 by husband’s assignment in bankruptcy, be lifted and that matter be permitted to continue, but only with respect to property that was exempt from seizure by trustee in bankruptcy — Trustee said application was improperly before court in that wife was neither creditor to estate in bankruptcy nor was she director of corporation with interest in bankrupt estate — Trustee said wife had no vested title or interest in assets with trustee for benefit of creditors, and that she would not be prejudiced by stay — Application granted — Wife’s claim was provable in bankruptcy and as such, she should be invited by trustee to file claim and be given same consideration as was given to any other creditor — Continued operation of stay would materially prejudice wife in that it would prevent her from pursuing her family property claim in respect of exempt assets that did not form part of estate in bankruptcy — Stay was lifted to allow wife to pursue her claim against exempt assets — Wife was permitted to pursue claim against non-exempt assets in same way as any other creditor. Family law –––– Division of family property — Entitlement — General principles –––– Parties were married in 1985 and separated in 2008 — Husband petitioned for divorce and equal division of matrimonial home and property — Wife brought counter-petition seeking unequal division of family property — In May 2014, husband was ordered to pay interim spousal support of $7,500 per month — Approximately five weeks after support order was issued, husband filed assignment in bankruptcy — Wife applied for order that stay of her family property claim, caused by husband’s assignment in bankruptcy, be lifted and that matter be permitted to continue, but only with respect to property that was exempt from seizure by trustee in bankruptcy — Trustee said application was improperly before court in that wife was neither creditor to estate in bankruptcy nor was she director of corporation with interest in bankrupt estate — Trustee said wife had no vested title or interest in assets with trustee for benefit of creditors, and that she would not be prejudiced by stay — Application granted — Wife’s claim was provable in bankruptcy and as such, she should be invited by trustee to file claim and be given same consideration as was given to any other creditor — Continued operation of stay would materially prejudice wife in that it would prevent her from pursuing her family property claim in respect of exempt assets that did not form part of estate in bankruptcy — Stay was lifted to allow wife to pursue her claim against exempt assets — Wife was permitted to pursue claim against non-exempt assets in same way as any other creditor. Family law –––– Division of family property — Events after separation — Miscellaneous –––– Parties were married in 1985 and separated in 2008 — Hus- band petitioned for divorce and equal division of matrimonial home and property — Wife brought counter-petition seeking unequal division of family property — In May 2014, husband was ordered to pay interim spousal support of $7,500 per month — Approximately five weeks after support order was issued, husband filed assignment in bankruptcy — Wife applied for order that stay of 276 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

her family property claim, caused by husband’s assignment in bankruptcy, be lifted and that matter be permitted to continue, but only with respect to property that was exempt from seizure by trustee in bankruptcy — Trustee said application was improperly before court in that wife was neither creditor to estate in bankruptcy nor was she director of corporation with interest in bankrupt estate — Trustee said wife had no vested title or interest in assets with trustee for benefit of creditors, and that she would not be prejudiced by stay — Application granted — Wife’s claim was provable in bankruptcy and as such, she should be invited by trustee to file claim and be given same consideration as was given to any other creditor — Continued operation of stay would materially prejudice wife in that it would prevent her from pursuing her family property claim in respect of exempt assets that did not form part of estate in bankruptcy — Stay was lifted to allow wife to pursue her claim against exempt assets — Wife was permitted to pursue claim against non-exempt assets in same way as any other creditor. Family law –––– Division of family property — Order for division of property — Enforcement of order — Against bankrupt spouse –––– Parties were married in 1985 and separated in 2008 — Husband petitioned for divorce and equal division of matrimonial home and property — Wife brought counter-petition seeking unequal division of family property — In May 2014, husband was ordered to pay interim spousal support of $7,500 per month — Approximately five weeks after support order was issued, husband filed assignment in bankruptcy — Wife applied for order that stay of her family property claim, caused by husband’s assignment in bankruptcy, be lifted and that matter be permitted to continue, but only with respect to property that was exempt from seizure by trustee in bankruptcy — Trustee said application was improperly before court in that wife was neither creditor to estate in bankruptcy nor was she director of corporation with interest in bankrupt estate — Trustee said wife had no vested title or interest in assets with trustee for benefit of creditors, and that she would not be prejudiced by stay — Application granted — Wife’s claim was provable in bankruptcy and as such, she should be invited by trustee to file claim and be given same consideration as was given to any other creditor — Continued operation of stay would materially prejudice wife in that it would prevent her from pursuing her family property claim in respect of exempt assets that did not form part of estate in bankruptcy — Stay was lifted to allow wife to pursue her claim against exempt assets — Wife was permitted to pursue claim against non-exempt assets in same way as any other creditor. Cases considered by R.W. Elson J.: Bellamy v. Hill (2005), 2005 SKQB 333, 2005 CarswellSask 535, 271 Sask. R. 216, [2005] S.J. No. 512 (Sask. Q.B.) — considered Charles v. Becerra (2012), 2012 SKQB 27, 2012 CarswellSask 26, 86 C.B.R. (5th) 329, 389 Sask. R. 89 (Sask. Q.B.) — considered Shirkie v. Shirkie 277

Ioanidis v. Ioanidis (2007), 2007 SKQB 233, 2007 CarswellSask 345, 297 Sask. R. 41, [2007] S.J. No. 333 (Sask. Q.B.) — referred to Lacroix c. Valois (1990), 74 D.L.R. (4th) 61, 4 C.B.R. (3d) 113, 29 R.F.L. (3d) 337, (sub nom. L. (L.) v. V. (N.)) 119 N.R. 64, (sub nom. L. (L.) v. V. (N.)) 36 Q.A.C. 280, [1990] 2 S.C.R. 1259, (sub nom. Droit de la famille - 176) [1990] R.D.F. 660, 1990 CarswellQue 36, 1990 CarswellQue 121, EYB 1990-67822 (S.C.C.) — considered McJannet v. McJannet (1988), 72 C.B.R. (N.S.) 184, 73 Sask. R. 20, 1988 Car- swellSask 33, [1988] S.J. No. 796 (Sask. Q.B.) — considered Propp v. Propp (2014), 2014 SKCA 5, 2014 CarswellSask 11, 38 R.F.L. (7th) 276, 433 Sask. R. 42, 602 W.A.C. 42 (Sask. C.A.) — referred to Schreyer v. Schreyer (2011), 2011 SCC 35, 2011 CarswellMan 334, 2011 Car- swellMan 335, 78 C.B.R. (5th) 1, [2011] 8 W.W.R. 413, 418 N.R. 61, 1 R.F.L. (7th) 1, [2011] 2 S.C.R. 605, [2011] S.C.J. No. 35, [2011] A.C.S. No. 35, 268 Man. R. (2d) 154, 334 D.L.R. (4th) 1, 520 W.A.C. 154 (S.C.C.) — considered Scott, Re (2014), 2014 ONSC 5566, 2014 CarswellOnt 13085, 51 R.F.L. (7th) 223, 19 C.B.R. (6th) 109 (Ont. S.C.J.) — followed Walton v. Walton (1993), 23 C.B.R. (3d) 315, 116 Sask. R. 129, 59 W.A.C. 129, 108 D.L.R. (4th) 704, 1 R.F.L. (4th) 93, 1993 CarswellSask 33, [1993] S.J. No. 637 (Sask. C.A.) — considered Statutes considered: Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 Generally — referred to s. 59(2) — considered s. 69.3(1) [en. 1992, c. 27, s. 36(1)] — considered s. 69.31(1) [en. 1997, c. 12, s. 65] — considered s. 69.4 [en. 1992, c. 27, s. 36(1)] — considered s. 69.4(a) [en. 1992, c. 27, s. 36(1)] — considered s. 69.4(b) [en. 1992, c. 27, s. 36(1)] — considered s. 71 — considered s. 121 — considered s. 121(1) — considered s. 135 — considered s. 183 — considered Family Property Act, S.S. 1997, c. F-6.3 Generally — referred to s. 43 — considered

APPLICATION by wife for order that stay of her family property claim be lifted and matter be permitted to continue with respect to property that was exempt by Trustee in Bankruptcy. 278 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

James J. Vogel, for Respondent, Barbara Shirkie Mark H. Hawkins, for Trustee in bankruptcy, Cameron Okolita

R.W. Elson J.: Introduction 1 This application raises one of the many troublesome issues that arise when a family property litigant files an assignment in bankruptcy in the midst of the litigation. 2 In this application, the respondent seeks an order that the stay of her family property claim, caused by the petitioner’s assignment in bankruptcy, be lifted and that the matter be permitted to continue, but only with respect to property that is exempt from seizure by the Trustee in Bankruptcy [Trustee]. The application is made pursuant to s. 69.4 of the Bankruptcy and Insolvency Act, RSC 1985, c B-3 [BIA]. 3 For the reasons that follow, I am satisfied that the stay should be lifted in order to permit the respondent to pursue her claim in respect of the exempt property. I am also satisfied that the respondent has a provable claim in respect of the non-exempt property, and that, to the extent her claim relates to such property, she should be entitled to file a claim in the same manner as any other creditor of the bankrupt estate.

Facts 4 The court record shows that the petition was issued on March 4, 2008 and the respondent filed her answer and counter-petition on March 24, 2014. From these pleadings, it is apparent that the parties were married on December 30, 1985 and separated on or about February 1, 2008. In his petition, the petitioner sought, among other things, a divorce and equal division of both the matrimonial home and the matrimonial property. In her counter-petition, the respondent sought an unequal division of the family property. 5 Each of the parties filed their respective property statements, albeit filed six years apart. The petitioner’s property statement listed the value of all assets at $1,276,800.00, with total debts and other liabilities of $391,972.00, for a value of the net family property amounting to $884,828.00. A summary breakdown of this valuation is as follows: Real Property $ 920,000.00 Household Goods and Vehicles 50,000.00 Pension and RSPs 303,800.00 Shirkie v. Shirkie R.W. Elson J. 279

Business Interests unknown Total Assets $1,276,800.00 Liabilities $ 391,972.00 Net Value $ 884,828.00 6 The real property identified in the petitioner’s property statement consisted of three parcels of real property which were jointly held with the respondent. These parcels were the family home in Regina and two lots in the town of Elbow, Saskatchewan. The petitioner estimated the value of the family home at $800,000.00 and the two parcels in Elbow at $80,000.00 and $40,000.00. 7 The respondent’s property statement differs somewhat, but not in a drastic way. Largely, this is due to the fact that the respondent had limited knowledge of certain details, particularly as to the values of the petitioner’s registered savings plans. It should also be noted that she had a slightly different valuation for the properties in Elbow, but agreed on the valuation given to the family home. A summary breakdown of her valuation is as follows: Real Property $ 960,000.00 Household Goods and Vehicles 48,100.00 Bank accounts 8.00 Pension and RSPs 50,000.00 Business Interests unknown Total Assets $1,058,108.00 Liabilities $ 113,000.00 Net Value $ 945,108.00 8 The court record reflects no activity of any consequence until Sep- tember 2013, when the petitioner’s counsel withdrew. On March 24, 2014, the respondent filed her answer and counter-petition and brought an application for spousal support. In her property statement, the respondent agreed with the petitioner’s estimated value of the family home ($800,000.00), but she estimated the cumulative value of the land in El- bow at $160,000.00. 9 In the application for interim spousal support, this Court issued an interim order on May 14, 2014, directing the petitioner to pay the respondent interim spousal support in the amount of $7,500.00 per month, commencing May 1, 2014. The court further determined that an April pay- 280 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

ment from the petitioner of $10,000.00 constituted a spousal support payment. 10 Approximately five weeks after the support order was issued, the petitioner filed an assignment in bankruptcy through the offices of Cam- eron Okolita Inc., Trustees in Bankruptcy. The effective date of the assignment was June 23, 2014. The respondent was notified of the assignment through a letter from the Trustee dated July 17, 2014. 11 I digress from the narrative at this point to comment on the proceedings in the petitioner’s bankruptcy file. In this respect, it should be noted that the style of cause covering this judgment includes that file. In large measure, this is because I have concluded that it is appropriate for me to exercise jurisdiction in this application as a judge of the bankruptcy court pursuant to s. 183 of the BIA. As such, I am satisfied that I can take judicial notice of the contents of the bankruptcy file. 12 There are matters on the bankruptcy file which I find somewhat note- worthy. In particular, I noted that the petitioner, through the office of the Trustee, gave notice of a proposal to creditors on November 12, 2013. The list of creditors associated with the notice did not include the respondent. In December 2013, the petitioner applied for approval of his proposal. In a letter dated January 21, 2014, the Registrar in Bankruptcy advised the Trustee that she was “presently not convinced that this proposal is reasonable...” Nevertheless, she was prepared to provide the petitioner with an opportunity to be heard on the merits and she invited the Trustee to set up a time for a hearing. 13 One of the concerns, expressed by the Registrar in Bankruptcy related to the family court proceeding. Referencing the Registrar’s letter, she said the following: Mr. Shirkie’s proposal hinges on a determination in family court that has not yet been made, or even applied for. He claims to have an interest in property, but the nature and scope of that interest remains undefined and, according to the proposal, will continue to be undefined until it has been fixed by an order for division of family property. Mr. Shirkie admits that it may take several years for the division of property proceedings to move through the courts. The proposed solution is to have the trustee file caveats securing his interest. In respect of trustee monitoring, Mr. Shirkie undertakes to direct his solicitor to provide a report to the Trustee on the matrimonial proceedings and division of property once a year for the duration of the proposal, if the proposal is approved. Shirkie v. Shirkie R.W. Elson J. 281

Without the court order, Mr. Shirkie does not have property to pledge. While a caveat may be used to preserve an existing interest, Mr. Shirkie’s interest cannot be preserved by a caveat, because it has not yet been determined by the court. While monitoring a court proceeding may be helpful in estimating when the property claim will be determined, I am not, presently convinced that this type of monitoring provides the type of certainty required for the proper administration of a proposal. 14 In response to the Registrar’s letter, the Trustee responded with a letter, dated May 28, 2014. In my view, it is appropriate to reference the first full paragraph of that letter, which reads as follows: Further to the Trustee’s application for Court approval of Mr. Shirkie’s proposal and your correspondence to our office dated Janu- ary 21, 2014, Mr. Shirkie has informed our office that he was recently ordered by the Court of Queen’s Bench to pay spousal support of $7,500.00 per month to his former spouse. At the date of his proposal filing, Mr. Shirkie had anticipated a monthly spousal support obligation in the amount of $3,500.00 per month. In view of the increased spousal support obligation, Mr. Shirkie is concerned about his capacity to advance the monthly payments required under his proposal. In addition, Mr. Shirkie’s legal counsel has advised him to make an assignment in bankruptcy. In view of the recent change in Mr. Shirkie’s financial situation, we hereby withdraw our application for approval of Mr. Shirkie’s proposal. 15 The Statement of Affairs [Statement] in respect of the petitioner’s bankruptcy is on the bankruptcy file and was also exhibited to the Trus- tee’s affidavit. The Statement listed the petitioner’s assets and valued them at $1,099,605.00, an amount which included the value of assets jointly held with the respondent as well as property the Trustee catego- rized as exempt from seizure. The estimated net realizable value for these assets was set at $451,000.00. The petitioner’s unsecured liabilities were estimated to be $435,543.00 and the secured liability was estimated at $75,000.00, for total liabilities of $510,543.00. 16 Given the nature of the respondent’s application, it is important to identify the property that the Trustee has identified as exempt. These properties consisted of household furnishings, personal effects, the Sas- katchewan Pension Plan, two registered retirement savings plans, two life insurance policies, a truck, a laptop computer and certain tools of trade. The estimated value of the exempt items amounts to $158,602.00. 282 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

17 The list of exempt property does not include the petitioner’s interest in the family home. In the Trustee’s letter of July 17, 2014, he took the position that this interest was not exempt. As a consequence, the Trustee proposed that all the real property, including the family home, be listed for sale, or that the respondent acquire the petitioner’s interests in these properties from the bankrupt estate.

Legislation 18 The legislation engaged by this application is the BIA, and The Fam- ily Property Act, SS 1997, c F-6.3 [FPA]. The relevant provisions of these two statutes are as follows: Bankruptcy and Insolvency Act 69.3(1) Subject to subsections (1.1) and (2) and sections 69.4 and 69.5, on the bankruptcy of any debtor, no creditor has any remedy against the debtor or the debtor’s property, or shall commence or continue any action, execution or other proceedings, for the recovery of a claim provable in bankruptcy. ... 69.31(1) Where a notice of intention under subsection 50.4(1) has been filed or a proposal has been made by an insolvent corporation, no person may commence or continue any action against a director of the corporation on any claim against directors that arose before the commencement of proceedings under this Act and that relates to obligations of the corporation where directors are under any law liable in their capacity as directors for the payment of such obligations, until the proposal, if one has been filed, is approved by the court or the corporation becomes bankrupt. ... 69.4 A creditor who is affected by the operation of sections 69 to 69.31 or any other person affected by the operation of section 69.31 may apply to the court for a declaration that those sections no longer operate in respect of that creditor or person, and the court may make such a declaration, subject to any qualifications that the court considers proper, if it is satisfied (a) that the creditor or person is likely to be materially prejudiced by the continued operation of those sections; or (b) that it is equitable on other grounds to make such a declaration. ... 71. On a bankruptcy order being made or an assignment being filed with an official receiver, a bankrupt ceases to have any capacity to dispose of or otherwise deal with their property, which shall, subject Shirkie v. Shirkie R.W. Elson J. 283

to this Act and to the rights of secured creditors, immediately pass to and vest in the trustee named in the bankruptcy order or assignment, and in any case of change of trustee the property shall pass from trustee to trustee without any assignment or transfer. ... 121(1) All debts and liabilities, present or future, to which the bankrupt is subject on the day on which the bankrupt becomes bankrupt or to which the bankrupt may become subject before the bankrupt’s discharge by reason of any obligation incurred before the day on which the bankrupt becomes bankrupt shall be deemed to be claims provable in proceedings under this Act. ... 135(1) The trustee shall examine every proof of claim or proof of security and the grounds therefor and may require further evidence in support of the claim or security. (1.1) The trustee shall determine whether any contingent claim or unliquidated claim is a provable claim, and, if a provable claim, the trustee shall value it, and the claim is thereafter, subject to this section, deemed a proved claim to the amount of its valuation. (2) The trustee may disallow, in whole or in part, (a) any claim; (b) any right to a priority under the applicable order of priority set out in this Act; or (c) any security. (3) Where the trustee makes a determination under subsection (1.1) or, pursuant to subsection (2), disallows, in whole or in part, any claim, any right to a priority or any security, the trustee shall forthwith provide, in the prescribed manner, to the person whose claim was subject to a determination under subsection (1.1) or whose claim, right to a priority or security was disallowed under subsection (2), a notice in the prescribed form setting out the reasons for the determination or disallowance. (4) A determination under subsection (1.1) or a disallowance referred to in subsection (2) is final and conclusive unless, within a thirty day period after the service of the notice referred to in subsection (3) or such further time as the court may on application made within that period allow, the person to whom the notice was provided appeals from the trustee’s decision to the court in accordance with the Gen- eral Rules 284 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

(5) The court may expunge or reduce a proof of claim or a proof of security on the application of a creditor or of the debtor if the trustee declines to interfere in the matter. Family Property Act 43(1) No provision of this Act vests any title to or interest in any family property of one spouse in the other spouse. (2) Subject to subsection 18(2) and sections 28 and 50, any inter- spousal contract and any order of a court made pursuant to this Act, the spouse who owns the family property may sell, lease, mortgage, hypothecate, repair, improve, demolish, spend or otherwise deal with or dispose of the property as if this Act had not been passed.

Positions of the Parties 19 The respondent suggests that it should remain open for her to pursue her family property claim with respect to the exempt assets. She maintains that her claim will have no impact on the assets within the estate in bankruptcy, but for her right to file a provable claim in bankruptcy for that part of her family property claim that pertains to the non-exempt assets. 20 The Trustee resists the respondent’s application on two bases. Firstly, the Trustee contends that the application is improperly before the court in that the respondent is neither a creditor to the estate in bankruptcy nor is she a director of a corporation with an interest in the bankrupt estate. 21 Secondly, even if the matter is properly before the court, the Trustee contends that the stay should not be granted, for two reasons. The first reason relates to the fact that the respondent has no vested title or interest in the assets with the Trustee for the benefit of the creditors. The Trustee points out that those assets consisted of all of the property exclusively in the petitioner’s name as well as the petitioner’s interest in the jointly held property which, by virtue of the bankruptcy, had become severed from the respondent’s interest. Without any judgment for a liquidated sum, the Trustee maintains that the respondent has no claim or interest to any of this property. 22 As for the second reason why a stay would not be appropriate, the Trustee argues that the respondent has failed to produce any evidence that she is materially prejudiced by a stay. Indeed, the Trustee maintains that her interests in the jointly held property, now severed from the petitioner’s interests, are unaffected by the bankruptcy such that the lifting of Shirkie v. Shirkie R.W. Elson J. 285

the stay gives her no particular advantage that she would not otherwise have.

Analysis a. Is the respondent a creditor? 23 The Trustee’s argument that the respondent is not a creditor of the estate necessarily presumes that her family property claim is not one that is provable in bankruptcy. Based on my review of the authorities, as well as relevant text material, I am satisfied that this argument is without merit. 24 The provability in bankruptcy of a spouse’s property claim engages ss. 121 and 135 of the BIA. These provisions were discussed by the Su- preme Court of Canada in Schreyer v. Schreyer, 2011 SCC 35, [2011] 2 S.C.R. 605 (S.C.C.) [Schreyer]. In that case, the court dealt with a wife’s equalization claim that had not been fully valued at the time of the husband’s assignment into bankruptcy. The wife had not been included as a creditor and the husband was discharged from bankruptcy sometime after the valuation had been determined. The court agreed with the Manitoba Court of Appeal that the wife’s claim was provable in bankruptcy and, as such, was extinguished by the husband’s discharge. In coming to this conclusion, LeBel J. wrote the following at paras. 26 and 27: 26 Section 121 BIA contains a broad definition of a provable claim, which includes all debts and liabilities that exist at the time of the bankruptcy or that arise out of obligations incurred before the day the debtor went into bankruptcy. Thus, s. 121 provides that “[a]ll debts and liabilities, present or future, to which the bankrupt is subject on the day on which the bankrupt becomes bankrupt or to which the bankrupt may become subject before the bankrupt’s discharge by reason of any obligation incurred before the day on which the bankrupt becomes bankrupt” are deemed to be provable claims. Accord- ing to s. 121(2), the trustee must apply s. 135 BIA to determine whether contingent or unliquidated claims are provable. If the debt exists and can be liquidated, if the underlying obligation exists as of the date of bankruptcy and if no exemption applies, the claim will be deemed to be provable. 27 The date of the bankruptcy is of critical importance. If the equalization claim was liquidated before the bankruptcy, there is no doubt that the claim is provable. If it was still unliquidated as of the date of the bankruptcy, the issue becomes whether it remained too uncertain to allow the trustee to value it under s. 135 BIA. In the instant case, 286 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

given the nature of Manitoba’s equalization scheme, I consider the claim to have been provable. The FPA establishes a principle of equality between spouses. The accounting of assets and liabilities under s. 15 FPA leads to an equal division, subject to a limited judicial discretion under s. 14 to depart from the formula provided for in s. 15. A right to payment existed in this case from the time of separation of the spouses, and hence existed at the time of the bankruptcy. All that remained was to determine the quantum by applying a clear formula that left little scope for judicial discretion. In such circumstances, the claim could not be considered so uncertain that s. 135 BIA could not apply. On the contrary, the appellant’s claim, which had arisen before the bankruptcy and was determinable under the FPA, was provable (Klotz, at pp. 5-3, 5-4, 5-5 and 5-9). 25 In referencing the Schreyer decision, it should be remembered that Manitoba’s family property law follows the equalization scheme for the distribution of family property, while Saskatchewan follows a division of property scheme. While there may be circumstances in which this difference is significant, I am satisfied that the above referenced comments would apply equally in Saskatchewan. 26 Further, the question of provability has been addressed in other decisions of this Court, including McJannet v. McJannet (1988), 73 Sask. R. 20 (Sask. Q.B.), Bellamy v. Hill, 2005 SKQB 333, 271 Sask. R. 216 (Sask. Q.B.) and Charles v. Becerra, 2012 SKQB 27, 389 Sask. R. 89 (Sask. Q.B.). The principal requirement is that the solvent spouse’s claim arises before the date of bankruptcy. In the context of family property claims, such a claim is said to arise on the date of a “triggering event”. In Saskatchewan, it has been held that this occurs as of the date that the property division application is made (See: Ioanidis v. Ioanidis, 2007 SKQB 233, 297 Sask. R. 41 (Sask. Q.B.) as well as Propp v. Propp, 2014 SKCA 5, 433 Sask. R. 42 (Sask. C.A.)). Given this definition, it is clear that the respondent’s claim arose before the petitioner’s bankruptcy. 27 The only other qualifier that could be applied to the provability of the family property claim relates to the possibility that judicial discretion might be exercised in such a way that the claim’s value cannot be fully determined without a trial. In this respect, the decisions in Lacroix c. Valois, [1990] 2 S.C.R. 1259 (S.C.C.) and Walton v. Walton (1993), 116 Sask. R. 129 (Sask. C.A.) appear to stand for the proposition that, where it is reasonable to expect a significant impact by the exercise of such discretion, the claim may not be regarded as provable. Shirkie v. Shirkie R.W. Elson J. 287

28 In the present case, given the nature of our law and the respective valuations in the parties’ property statements, I am satisfied that the impact of judicial discretion would be minimal. In saying this, I appreciate that the Registrar in Bankruptcy expressed concerns about the uncertainty in the petitioner’s proposal to creditors. In my view, that consideration only pertained to the proposal’s ability to meet s. 59(2) of the BIA as well as its prospects for success. The Registrar’s concerns did not per- tain to whether the respondent’s claim was provable in bankruptcy. 29 In short, I am satisfied that the respondent’s claim is provable in bankruptcy. As such, it is also apparent that she should be invited by the Trustee to file a claim and be given the same consideration as is given to any other creditor. 30 Considering that the respondent is indeed a creditor to the bankrupt estate, it necessarily follows that her provable claim is stayed through the operation of s. 69.3(1) of the BIA, and that she has standing to bring an application to lift that stay.

b. Has the respondent made out a case for lifting the stay of proceeding? 31 Having decided that the respondent has standing to bring an application to lift the stay of proceedings, the question arises as to whether it is appropriate for this Court to do so. The first consideration in this respect relates to the court’s jurisdiction to make such an order. The application before me was filed in the context of the litigation between the petitioner and the respondent. I am satisfied that this is not the preferred practice. Rather, it should have been filed in respect of the bankruptcy matter, with this Court exercising its jurisdiction as a bankruptcy court pursuant to s. 183 of the BIA. Nonetheless, recognizing that this Court exercises such jurisdiction, I am satisfied that it is appropriate for me to issue the stay in respect of this application provided that the order for same is issued and filed through the petitioner’s bankruptcy proceeding. 32 The next question relates to whether the respondent has satisfied the requirements of s. 69.4 of the BIA. In this respect, the respondent must satisfy the court that she is likely to be “materially prejudiced” by the continued operation of the stay, or that it is equitable on other grounds to make such a declaration. The respondent’s written submissions were not specifically directed to either of these elements. Rather, the respondent relied on the decision of the Ontario Superior Court of Justice (exercising jurisdiction as the bankruptcy court) in Scott, Re, 2014 ONSC 5566, 51 288 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

R.F.L. (7th) 223 (Ont. S.C.J.) [Scott]. In that case, a married couple had separated, although there was a dispute as to the date of the separation. The husband asserted that the couple had separated on September 30, 2007 while the wife contended that the separation did not occur until August 1, 2012. The husband filed an assignment in bankruptcy on July 26, 2012. The issue before the court was whether the stay of proceedings should be lifted in order to permit the wife to pursue her family property claim for equalization in respect of both exempt assets and non-exempt assets. 33 Kershman J. ordered that the stay be lifted so that the wife could pursue her claim for equalization in two respects. With respect to the exempt assets, she could pursue her claim based on the assumption that there had been no bankruptcy. With respect to non-exempt assets, the court directed that the claim could be pursued only to determine the amount of equalization for the purpose of making a claim in respect of her husband’s bankruptcy. In making this direction, I note that Kershman J. did not say whether he was directing his order on the basis of s. 69.4(a) or (b). Given that he did not make an express finding of “material prejudice”, I can only presume that his direction was based on equitable considerations under s. 69.4(b). 34 The respondent urges me to follow the approach in Scott. I am persuaded that it is appropriate to do so, albeit in a somewhat different way. In this respect, I am satisfied that the continued operation of the stay will materially prejudice the respondent in that it will prevent her from pursuing her family property claim in respect of the exempt assets that do not form part of the estate in bankruptcy. If I am wrong in finding material prejudice in this respect, I am satisfied that, on equitable or other grounds, it is appropriate to lift the stay in so far as the respondent’s claim pertains to a division of family property consisting of exempt assets. 35 As for the non-exempt assets, I am not convinced that this requires a lifting of the stay, per se. I have already observed that the respondent’s family property claim, to the extent it pertains to the non-exempt assets, is a provable claim in bankruptcy, which the respondent should be permitted to pursue in the same way as any other creditor. Beyond this observation, it seems to me that a lifting of the stay of proceedings in this respect is unnecessary. Shirkie v. Shirkie R.W. Elson J. 289

Conclusion 36 In the result, there shall be an order lifting the stay of proceedings in respect of the respondent’s claim for an unequal division of family property, but only insofar as the claim pertains to the division of assets that are exempt from seizure. 37 The respondent shall be entitled to her taxable costs against the Trus- tee, payable forthwith. Application granted. 290 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

[Indexed as: McInerney v. Laass] Patrick Harold McInerney, Petitioner and Barbara Collette Laass and HSBC Bank of Canada and Attorney General of Canada, Respondents British Columbia Supreme Court Docket: Prince George 1546870 2015 BCSC 1708 G.P. Weatherill J. Heard: September 1, 2015 Judgment: September 22, 2015 Estates and trusts –––– Trusts — Constructive trust — Family — General principles –––– Taxpayer and personal respondent L purchased home in joint tenancy while in common law relationship — Parties separated and separation agreements were drafted in 2009 and 2012, whereby taxpayer released interest in home to L in exchange for her release of claims on his business and his pension — Agreements never formally executed — Bank obtained judgment against taxpayer on guarantee and registered it against his interest in home — Canada Revenue Agency (CRA) also registered judgment against taxpayer’s interest — Taxpayer brought motion for declaration that his interest was held in trust for L and order that bank and CRA judgments be discharged — Motion granted — In absence of formal documentation creating trust, court may infer intention to create trust from surrounding circumstances — Parties had acted on separation agreements by L paying mortgage payments and modifying court-ordered support amounts — Statutory presumption that persons registered on title of property are presumed to hold its legal and equitable interest — Burden on party seeking to challenge state of title to prove otherwise — Presumption can be displaced by equitable principles, including enforcement of agreement between parties to prevent unjust enrichment if face of title is upheld — Taxpayer would be unjustly enriched if property interest held to still be his — Monetary award would be inappropriate in circumstances — Judgments were subsequent to agreements — Taxpayer had no interest in property to be attached. Restitution and unjust enrichment –––– General principles — Requirements for unjust enrichment — Conferral of benefit –––– Taxpayer and personal respondent L purchased home in joint tenancy while in common law relationship — Parties separated and separation agreements were drafted in 2009 and 2012, whereby taxpayer released interest in home to L in exchange for her release of claims on his business and his pension — Agreements never formally executed — Bank obtained judgment against taxpayer on guarantee and regis- McInerney v. Laass 291

tered it against his interest in home — Canada Revenue Agency (CRA) also registered judgment against taxpayer’s interest — Taxpayer brought motion for declaration that his interest was held in trust for L and order that bank and CRA judgments be discharged — Motion granted — In absence of formal documentation creating trust, court may infer intention to create trust from surrounding circumstances — Parties had acted on separation agreements by L paying mortgage payments and modifying court-ordered support amounts — Statutory presumption that persons registered on title of property are presumed to hold its legal and equitable interest — Burden on party seeking to challenge state of title to prove otherwise — Presumption can be displaced by equitable principles, including enforcement of agreement between parties to prevent unjust enrichment if face of title is upheld — Taxpayer would be unjustly enriched if property interest held to still be his — Monetary award would be inappropriate in circumstances — Judgments were subsequent to agreements — Taxpayer had no interest in property to be attached. Debtors and creditors –––– Executions — Exigibility — Real property interests — Land held in trust — Judgment debtor as trustee –––– Taxpayer and personal respondent L purchased home in joint tenancy while in common law relationship — Parties separated and separation agreements were drafted in 2009 and 2012, whereby taxpayer released interest in home to L in exchange for her release of claims on his business and his pension — Agreements never formally executed — Bank obtained judgment against taxpayer on guarantee and registered it against his interest in home — Canada Revenue Agency (CRA) also registered judgment against taxpayer’s interest — Taxpayer brought motion for declaration that his interest was held in trust for L and order that bank and CRA judgments be discharged — Motion granted — In absence of formal documentation creating trust, court may infer intention to create trust from surrounding circumstances — Parties had acted on separation agreements by L paying mortgage payments and modifying court-ordered support amounts — Statutory presumption that persons registered on title of property are presumed to hold its legal and equitable interest — Burden on party seeking to challenge state of title to prove otherwise — Presumption can be displaced by equitable principles, including enforcement of agreement between parties to prevent unjust enrichment if face of title is upheld — Taxpayer would be unjustly enriched if property interest held to still be his — Monetary award would be inappropriate in circumstances — Judgments were subsequent to agreements — Taxpayer had no interest in property to be attached. Family law –––– Division of family property — Determination of ownership of property — Application of trust principles — Resulting and constructive trusts — Constructive trusts generally –––– Taxpayer and personal respondent L purchased home in joint tenancy while in common law relationship — Parties separated and separation agreements were drafted in 2009 and 2012, whereby 292 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

taxpayer released interest in home to L in exchange for her release of claims on his business and his pension — Agreements never formally executed — Bank obtained judgment against taxpayer on guarantee and registered it against his interest in home — Canada Revenue Agency (CRA) also registered judgment against taxpayer’s interest — Taxpayer brought motion for declaration that his interest was held in trust for L and order that bank and CRA judgments be discharged — Motion granted — In absence of formal documentation creating trust, court may infer intention to create trust from surrounding circumstances — Parties had acted on separation agreements by L paying mortgage payments and modifying court-ordered support amounts — Statutory presumption that persons registered on title of property are presumed to hold its legal and equitable interest — Burden on party seeking to challenge state of title to prove otherwise — Presumption can be displaced by equitable principles, including enforcement of agreement between parties to prevent unjust enrichment if face of title is upheld — Taxpayer would be unjustly enriched if property interest held to still be his — Monetary award would be inappropriate in circumstances — Judgments were subsequent to agreements — Taxpayer had no interest in property to be attached. Tax –––– Income tax — Administration and enforcement — Collection of tax — Seizure of assets –––– Taxpayer and personal respondent L purchased home in joint tenancy while in common law relationship — Parties separated and separation agreements were drafted in 2009 and 2012, whereby taxpayer released interest in home to L in exchange for her release of claims on his business and his pension — Agreements never formally executed — Bank obtained judgment against taxpayer on guarantee and registered it against his interest in home — Canada Revenue Agency (CRA) also registered judgment against taxpayer’s interest — Taxpayer brought motion for declaration that his interest was held in trust for L and order that bank and CRA judgments be discharged — Motion granted — In absence of formal documentation creating trust, court may infer intention to create trust from surrounding circumstances — Parties had acted on separation agreements by L paying mortgage payments and modifying court-ordered support amounts — Statutory presumption that persons registered on title of property are presumed to hold its legal and equitable interest — Bur- den on party seeking to challenge state of title to prove otherwise — Presump- tion can be displaced by equitable principles, including enforcement of agreement between parties to prevent unjust enrichment if face of title is upheld — Taxpayer would be unjustly enriched if property interest held to still be his — Monetary award would be inappropriate in circumstances — Judgments were subsequent to agreements — Taxpayer had no interest in property to be attached. McInerney v. Laass 293

Cases considered by G.P. Weatherill J.: Bajwa v. Pannu (2006), 2006 BCSC 921, 2006 CarswellBC 1501, 45 R.P.R. (4th) 220, 57 B.C.L.R. (4th) 161, [2006] B.C.J. No. 1374 (B.C. S.C.) — referred to Bajwa v. Pannu (2007), 2007 BCCA 260, 2007 CarswellBC 1143, 66 B.C.L.R. (4th) 192, 56 R.P.R. (4th) 15, 33 E.T.R. (3d) 5, 241 B.C.A.C. 249, 399 W.A.C. 249, [2007] B.C.J. No. 1093 (B.C. C.A.) — referred to Becker v. Pettkus (1980), [1980] 2 S.C.R. 834, 117 D.L.R. (3d) 257, 34 N.R. 384, 8 E.T.R. 143, 19 R.F.L. (2d) 165, 1980 CarswellOnt 299, 1980 Cars- wellOnt 644, [1980] S.C.J. No. 103 (S.C.C.) — considered Ellingsen, Re (2000), 2000 BCCA 458, 2000 CarswellBC 1684, (sub nom. Ellingsen (Trustee of) v. Hallmark Ford Sales Ltd.) 190 D.L.R. (4th) 47, 7 B.L.R. (3d) 12, 19 C.B.R. (4th) 166, (sub nom. Ellingsen (Bankrupt), Re) 142 B.C.A.C. 26, (sub nom. Ellingsen (Bankrupt), Re) 233 W.A.C. 26, 1 P.P.S.A.C. (3d) 307, [2000] B.C.J. No. 1682 (B.C. C.A.) — referred to Elliott (Litigation Guardian of) v. Elliott Estate (2008), 2008 CarswellOnt 7448, 45 E.T.R. (3d) 84, [2008] O.J. No. 4941 (Ont. S.C.J.) — referred to Frame v. Rai (2012), 2012 BCSC 1876, 2012 CarswellBC 3914, 83 E.T.R. (3d) 245 (B.C. S.C.) — followed Garland v. Consumers’ Gas Co. (2004), 2004 SCC 25, 2004 CarswellOnt 1558, 2004 CarswellOnt 1559, [2004] S.C.J. No. 21, 237 D.L.R. (4th) 385, 43 B.L.R. (3d) 163, 319 N.R. 38, 186 O.A.C. 128, 9 E.T.R. (3d) 163, [2004] 1 S.C.R. 629, 72 O.R. (3d) 80 (note), REJB 2004-60672, 42 Alta. L. Rev. 399, [2004] A.C.S. No. 21, 72 O.R. (3d) 80, 2004 CSC 25 (S.C.C.) — considered Heck v. 101135807 Saskatchewan Ltd. (2012), 2012 SKQB 155, 2012 Carswell- Sask 301, 396 Sask. R. 92 (Sask. Q.B.) — referred to Kerr v. Baranow (2011), 2011 CarswellBC 240, 2011 CarswellBC 241, [2011] 3 W.W.R. 575, 64 E.T.R. (3d) 1, 14 B.C.L.R. (5th) 203, 411 N.R. 200, 328 D.L.R. (4th) 577, [2011] S.C.J. No. 10, [2011] A.C.S. No. 10, 93 R.F.L. (6th) 1, 274 O.A.C. 1, 300 B.C.A.C. 1, [2011] 1 S.C.R. 269, (sub nom. Vanasse v. Seguin) 108 O.R. (3d) 399, 509 W.A.C. 1, 2011 SCC 10 (S.C.C.) — considered Kiyon v. Lanegraff (2007), 2007 BCSC 1299, 2007 CarswellBC 2017, 34 E.T.R. (3d) 46 (B.C. S.C.) — referred to Lewis v. Union of B.C. Performers (1996), 11 E.T.R. (2d) 137, 18 B.C.L.R. (3d) 382, [1996] 6 W.W.R. 588, 70 B.C.A.C. 99, 115 W.A.C. 99, 1996 Car- swellBC 160, [1996] B.C.J. No. 133 (B.C. C.A.) — referred to Mordo v. Nitting (2006), 2006 BCSC 1761, 2006 CarswellBC 2934, [2006] B.C.J. No. 3081 (B.C. S.C.) — considered Pacific National Investments Ltd. v. Victoria (City) (2004), 2004 SCC 75, 2004 CarswellBC 2673, 2004 CarswellBC 2674, 245 D.L.R. (4th) 211, 34 B.C.L.R. (4th) 1, 3 M.P.L.R. (4th) 1, [2005] 3 W.W.R. 1, [2004] 3 S.C.R. 575, 327 N.R. 100, 206 B.C.A.C. 99, 338 W.A.C. 99, 42 C.L.R. (3d) 76, 294 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

REJB 2004-80300, [2004] S.C.J. No. 72, 2004 CSC 75 (S.C.C.) — referred to Rathwell v. Rathwell (1978), [1978] 2 S.C.R. 436, [1978] 2 W.W.R. 101, 83 D.L.R. (3d) 289, 19 N.R. 91, 1 E.T.R. 307, 1 R.F.L. (2d) 1, 1978 Carswell- Sask 36, 1978 CarswellSask 129, [1978] S.C.J. No. 14 (S.C.C.) — considered Skender v. Skender (2005), 2005 BCSC 418, 2005 CarswellBC 707, [2005] B.C.J. No. 673 (B.C. S.C.) — referred to Skender v. Skender (2006), 2006 BCCA 162, 2006 CarswellBC 772, 52 B.C.L.R. (4th) 6, [2006] B.C.J. No. 700 (B.C. C.A.) — referred to Soulos v. Korkontzilas (1997), 1997 CarswellOnt 1489, 212 N.R. 1, 9 R.P.R. (3d) 1, 46 C.B.R. (3d) 1, 32 O.R. (3d) 716 (headnote only), 146 D.L.R. (4th) 214, 100 O.A.C. 241, 17 E.T.R. (2d) 89, [1997] 2 S.C.R. 217, [1997] S.C.J. No. 52, 1997 CarswellOnt 1490, 32 O.R. (3d) 716, 32 O.R. (3d) 716 (note) (S.C.C.) — considered Statutes considered: Land Title Act, R.S.B.C. 1996, c. 250 Generally — referred to s. 23(2) — considered Law and Equity Act, R.S.B.C. 1996, c. 253 s. 37 — considered s. 44 — considered s. 59(3) — considered

MOTION for declaration that property was held in trust.

R.H. Craig, for Petitioner Barbara Collette Laass, Respondent, for herself G. Wright, for Respondent, HSBC Bank of Canada K. Khalsa, for Respondent, Attorney General of Canada

G.P. Weatherill J.: Introduction 1 The petitioner and respondent Ms. Barbara Laass lived in a common law relationship between 1994 and 2003. In October, 1994 they purchased residential property located at 3123 Wallace Crescent, Prince George B.C., legally described as Lot 20 District Lot 4046 Cariboo Dis- trict Plan 23142 (“the Property”), as joint tenants. 2 On October 5, 2012 and June 10, 2013 respectively the respondents HSBC Bank of Canada (“HSBC”) and the Attorney General of Canada McInerney v. Laass G.P. Weatherill J. 295

through the Canada Revenue Agency (“CRA”) registered judgements against the petitioner’s interest in the Property. 3 The petitioner seeks a declaration that he holds his interest in the Pro- perty in trust for Ms. Laass and an order that the HSBC and CRA judgements be discharged.

Background 4 On October 28, 1994 the petitioner and Ms. Laass (“the Parties”) jointly purchased the Property and began living together as husband and wife. They separated on September 21, 2003 (“Separation Date”). On the Separation Date the petitioner left the Property and has not resided in it since. 5 On November 10, 2003, the petitioner commenced a family law action in Supreme Court (“the Action”) seeking, among other things, an order for petition and sale of the Property. 6 At the Separation Date the Property was encumbered by a mortgage in favour of the CIBC in the amount of $85,183.36. The assessed value of the property in 2003 for property tax purposes was $118,500. The Par- ties’ assets were the Property, the petitioner’s shares in his company Pat McInerney Inc. (“the Company”), the petitioner’s union pension (“Pen- sion”), a 2002 Ford Explorer, the petitioner’s tools and various household furnishings and appliances. 7 Throughout 2004 there were a series of interim orders made in the Action related to child support, spousal support and return of chattels. Partition and sale of the Property did not proceed. 8 At the same time, the petitioner and Ms. Laass began negotiating an agreement to divide their assets and determine future spousal and child support. The petitioner informally agreed that, in exchange for Ms. Laass releasing any claims she may have against the Company and the Pension, she would be entitled to sole ownership of the Property. 9 From 2004 to 2009 the petitioner and Ms. Laass conducted themselves in accordance with this informal agreement. Ms. Laass paid all the Property’s expenses including monthly mortgage payments, taxes and repair costs. 10 Ms. Laass made no claim against the Company or the Pension. The petitioner’s name remained on the Property’s title. 11 Negotiations to formalize a separation agreement reconvened in Janu- ary, 2009. 296 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

12 In January 2009 Ms. Laass sent the petitioner a form of separation agreement (“First Separation Agreement”) which included these terms: Matrimonial Home Barbara Laass and Patrick McInerney have joint ownership in the matrimonial home located at 3123 Wallace Crescent, Prince George, British Columbia, V2K 3V4. Agreement Upon the signing of this agreement Barbara Laass will obtain sufficient financing to discharge Patrick McInerney’s mortgage obligations. Upon signing of this agreement Barbara Laass shall be solely responsible for repairs and maintenance to the matrimonial home, pay the mortgage, maintain all taxes, insurance, heat, water, and other charges, and keep the matrimonial home fully insured and will indemnify Patrick McInerney from all liability relating to relating to these expenses. Upon the signing of this agreement, Patrick McInerney will transfer all of his rights in the property and transfer full title of the matrimonial home at 3123 Wallace Crescent, Prince George, British Colum- bia V2K 3B4 to Barbara Laass. 13 The petitioner deposes that as of January, 2009, he agreed the property should be transferred to Ms. Laass because he no longer had a beneficial interest in it. 14 Because the First Separation Agreement was vague in places and did not adequately address issues of spousal support, child support and division of remaining assets, it was not finalized. 15 Between 2009 and 2012, the petitioner and Ms. Laass continued to negotiate. In March 2012 the petitioner sent Ms. Laass a more compre- hensive separation agreement (“Second Separation Agreement”) which provided: 45. Patrick covenants and agrees to transfer to Barbara forthwith upon the execution of this agreement all his right, title and interest in and to the Former Family Home by executing and delivering to Bar- bara or her solicitor a Form A freehold Transfer in the form attached hereto as Schedule “A”, and title to the Former Family Home shall be free and clear of all claims, charges, judgments and the like for which Patrick is responsible or potentially liable, in whole or in part, except the CIBC Mortgage. McInerney v. Laass G.P. Weatherill J. 297

16 A completed Land Title Act Form A transfer transferring his interest in the property to Ms. Laass was attached as Schedule A, but it was not signed. 17 For reasons that are unclear Ms. Laass did not return a signed copy of the Second Separation Agreement to the petitioner. The petitioner therefore did not sign the Form A freehold transfer. He deposes however that since 2009 he has had no beneficial interest in the Property. Because of the agreement he had reached with Ms. Laass he intended to transfer his legal interest in it to Ms. Laass. 18 Despite the Second Separation Agreement not being signed, the Par- ties have acted consistent with its covenants. Examples include: a. in accordance with Article 23, Ms. Laass has had sole custody of the children; b. in accordance with Article 24, the children have resided primarily with Ms. Laass; c. in accordance with Article 25, the petitioner has had access to the children as specified; d. in accordance with Article 26, the parties have exercised joint guardianship of the children; e. in accordance with Article 34, the petitioner has paid for one ex- tracurricular activity for each child; f. in accordance with Articles 36, 37 and 38, the petitioner has maintained a life insurance policy on his life in the amount of $100,000; g. in accordance with Article 50, the petitioner has kept the Com- pany, Pension, his bank accounts, investments and other chattels in his possession as his sole and separate property; h. in accordance with Article 51, Ms. Laass has kept the Property, her bank accounts, investments and other chattels in her possession as her sole and separate property. i. in accordance with Article 57, the petitioner has maintained health and dental coverage for the children; j. in accordance with Article 29, and despite court orders that were made in the petitioner’s family law action requiring him to pay $1,027 child support, the petitioner has been paying Ms. Laass reduced child support of $1,000 per month; 298 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

k. in accordance with Article 42, and despite a further order dated December 20, 2004 requiring the petitioner pay Ms. Laass spousal support of $1,000 per month, Ms. Laass has abandoned her claim for spousal support. 19 On May 16, 2012, HSBC commenced a debt action against the Com- pany and the petitioner on his guarantee of the Company’s debt. Judg- ment was duly entered in the amount of $80,092.44. 20 On October 5, 2012 HSBC registered its judgment against the petitioner’s interest in the Property. 21 On June 10, 2013 the CRA registered a $55,296.09 judgment against the petitioner’s interest in the Property. 22 The petitioner deposes that both debts were incurred after the Parties agreed that Ms. Laass would have sole ownership of the property. 23 In 2013, the petitioner’s provided a statutory declaration at HSBC’s request. The copy in evidence is unsworn. The statutory declaration provided: 2. Attached to this declaration as Schedule “A” is a complete and accurate statement of my affairs including my income, property, assets and liabilities and all obligations claimed against me as of the date of the statutory declaration. That list sets forth substantially all of my encumbered and unencumbered assets and details the assets which are held at the present time and have not been disposed of, together with an approximate evaluation of those assets in today’s current economic situation. ... 4. I have no legal or beneficial interest in any of any Property or other asset, other than that disclosed in Schedule A to the statutory declaration. 5. attached hereto and marked as a Schedule B is a true and current list of all property having a value in excess of $2,000 per item which I have Transferred or otherwise disposed of within the three years immediately preceding the date of the statutory declaration. 24 Neither Schedule A nor Schedule B disclosed that the petitioner had any interest in the Property because, as the petitioner deposed, he did not believe he had a beneficial interest in it. A note on the last page of the statutory declaration reads: I am a registered owner as joint tenant to the property at 3123 Wal- lace Crescent, Prince George, B. C. with market value of $241,400. McInerney v. Laass G.P. Weatherill J. 299

However, myself and my ex wife have a pending separation agreement in which I will be removed from title. I am also named in the mortgage registered against this property in favour of CIBC Mortgage Corporation with $32,000 outstanding and monthly payments of $900. The separation agreement with my ex wife also stipulates that I will no longer be responsible for the mortgage. 25 The petitioner continues to make monthly payments on both the HSBC and CRA judgments.

The Petitioner’s Position 26 The uncontradicted evidence is that, since 2009, the petitioner intended his interest in the Property was to be transferred to Ms. Laass. 27 It is also uncontradicted that the agreement the petitioner and Ms. Laass made superseded prior court orders respecting support and that the parties acted on the agreement - even to the extent that Ms. Laass instructed the Family Maintenance Enforcement Program (“FMEP”) not to enforce payment pursuant to court orders. She instructed FMEP to credit the petitioner with over $13,000 in arrears of support. She further instructed FMEP not to enforce the prior court orders respecting support. 28 The petitioner argues that he would be unjustly enriched if the informally documented separation agreements were not enforced. He argues that the proper and appropriate remedy is to now formally complete what the parties intended but neglected to complete and transfer his interest in the Property to Ms. Laass.

Ms. Laass’ Position 29 Ms. Laass adopts the petitioner’s evidence and submissions: because of the agreement reached between the parties respecting the division of family assets, the petitioner holds his registered interest in the Property in trust for her. 30 Failure to do so would result in the petitioner being unjustly enriched and Ms. Laass being unjustly deprived.

HSBC and the CRA’s Position 31 The respondents argue that the First Separation Agreement and Sec- ond Separation Agreement are nothing more than draft agreements because the Parties were still finalizing their terms. The unsigned Form A Transfer is strong evidence that the agreement was not yet complete. It 300 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

would only take effect and be binding when it was signed. Further negotiations were required and therefore the agreements cannot be enforced (Heck v. 101135807 Saskatchewan Ltd., 2012 SKQB 155 (Sask. Q.B.)). 32 Although the parties may have acted in accordance with portions of the Second Separation Agreement, negotiations were ongoing respecting the division of family assets. The petitioner was not prepared to give up his interest in the Property until the Second Separation Agreement was signed and Ms. Laass had formally given up any claim to the Company and the Pension. The Second Separation Agreement goes no further than to say that the parties were intending to do something that was never done. 33 In short, there was no declaration of trust. The petitioner had not done everything that needed to be done to transfer the Property to Ms. Laass and he remains a joint legal and equitable owner of the Property. HSBC and the CRA are entitled to attach his interest. 34 While there may be an informal agreement that is enforceable as between the petitioner and Ms. Laass, that agreement does not affect HSBC and the CRA who had no involvement in the negotiations or notice of the agreements. 35 The presumption in s. 23(2) of the Land Title Act, R.S.B.C. 1996 c. 250 that the petitioner is the legal and equitable owner of one-half of the Property has not been rebutted.

The Law Law of Trusts 36 The burden of proving the existence of an express trust rests on the party asserting its existence (Elliott (Litigation Guardian of) v. Elliott Es- tate, [2008] O.J. No. 4941 (Ont. S.C.J.) at para. 38). 37 A trust is validly constituted only if three certainties exist at the time of its creation: 1. Certainty of intention to create a trust. 2. Certainty of subject matter. 3. Certainty of objects; (Donovan W.M. Waters et al, Waters’ Law of Trusts In Canada, 4th ed (Toronto: Carswell, 2012) at 115 - 116 McInerney v. Laass G.P. Weatherill J. 301

Elliott at para. 24; Mordo v. Nitting, 2006 BCSC 1761 (B.C. S.C.) at para. 292). 38 The respondents concede the last two certainties exists. The issue is whether the petitioner has shown sufficient intention to create a trust in Ms. Laass’ favor. 39 To do so, the petitioner must have expressed a clear intention that he held the Property in trust for Ms. Laass. (Lewis v. Union of B.C. Per- formers (1996), 18 B.C.L.R. (3d) 382 (B.C. C.A.) at para. 21). 40 Certainty of intention is a question of fact. In the absence of formal documentation creating a trust, the court may infer an intention to create a trust from the surrounding circumstances. Evidence of what the parties intended, what they actually agreed upon and how they conducted themselves will be considered (Elliott at paras. 26 and 28). 41 In Mordo v. Nitting, 2006 BCSC 1761 (B.C. S.C.), Wedge, J. summarized the law concerning the requirements for a valid transfer to occur before a trust was constituted. At para. 266: [266] The rule as to the formation of a valid trust was stated in Milroy v. Lord (1862), 45 E.R. 1184 (C.A.) [Milroy]: [I]n order to render a voluntary settlement valid and effec- tual, the settler must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him (Milroy at 1189). And at paras. 275 and 276: [275] The acts necessary to affect a valid transfer of land is more a question of the legislation governing land transfers than a matter of trust law: The Australian Law Journal, [1968] A.L.J. Vol. 42 at 227. Section 20 of the Land Title Act, R.S.B.C. 1996, c. 250 [Land Title Act] deals with the transfer of land in British Columbia: 20. Except as against the person making it, an instrument purporting to transfer, charge, deal with or affect land or an estate or interest in land does not operate to pass an estate or interest, either at law or in equity, in the land unless the instrument is registered in compliance with this Act. [Emphasis added] [276] Davidson v. Davidson, 1946 CanLII 12 (SCC), [1946] 2 D.L.R. 289 (S.C.C), aff’g [1945] 2 W.W.R. 576 (B.C.C.A), the Supreme 302 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

Court of Canada, considering language of the Land Title Act almost identical to that now contained in s. 20, held that an unregistered transfer of land took effect on the day the transfer was executed and not on the day it was registered. More recently, in Chung Estate v. Chan (1995), 4 B.C.L.R. (3d) 370 (S.C.) [Chung], aff’d (1995), 1995 CanLII 2787 (BC CA), 13 B.C.L.R. (3d) 157 (C.A.) the court held that if the transferor has properly completed a freehold transfer form, the opening words of s. 20 — “except as against the person making it” — apply such that the form may be registered after the transferor’s death to effect a transfer of the property. 42 At para. 278, Wedge J. quoted from Austin W. Scott, The Law of Trusts, 1st ed. (Boston: Little, Brown and Company, 1939) at 225: A conveyance, whether absolute or in trust, is ineffective if the transferor does not surrender control of the property.... A conveyance in trust is incomplete unless the settlor has passed the title to the property to the trustee by delivery of the subject matter of the trust or of an instrument of transfer. On the other hand, if the conveyance in trust is completed by such delivery, the trust is not incomplete merely because the settlor reserves power to revoke or to alter the trust. There is a sufficient surrender of control over the property if the settlor transfers the title to it to the trustee, even though he reserves power to undo what he had done. The surrender of control is sufficient even though the settlor reserves power to reassume the control (Re Evans at 451 - 452). 43 Applying these principles, before an express trust can be validly constituted, the petitioner must have done everything necessary to create a valid trust by completing a Form A transfer and either registering it at the Land Title Office, or giving it to Ms. Laass.

Land Title Act 44 Section 23(2) of the Land Title Act provides: 23(2) An indefeasible title, as long as it remains in force and un- cancelled, is conclusive evidence at law and in equity, as against the Crown and all other persons, that the person named in the title as registered owner is indefeasibly entitled to an estate in fee simple to the land described in the indefeasible title... 45 This section creates a rebuttable statutory presumption that persons registered on the title of the property are presumed to hold its legal and equitable interest. The burden is on the party seeking to challenge the state of title to prove otherwise (Bajwa v. Pannu, 2006 BCSC 921, 57 McInerney v. Laass G.P. Weatherill J. 303

B.C.L.R. (4th) 161 (B.C. S.C.) aff’d 2007 BCCA 260, 66 B.C.L.R. (4th) 192 (B.C. C.A.)). 46 The presumption can be displaced by equitable principles including the enforcement of an agreement between the parties to prevent unjust enrichment if the face of the title is upheld (Skender v. Skender, 2005 BCSC 418 (B.C. S.C.), aff’d 2006 BCCA 162 (B.C. C.A.) at para 13; Kiyon v. Lanegraff, 2007 BCSC 1299 (B.C. S.C.)).

Unjust Enrichment 47 Unjust enrichment considers whether a plaintiff received and retained something given from the defendant with the absence of a juristic reason for the enrichment (Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 (S.C.C.) at para. 32). 48 The enrichment and corresponding deprivation requirements are considered under a straightforward economic approach (Kerr at para. 37). 49 Regarding the “absence of juristic reason” requirement, the Supreme Court of Canada states in Becker v. Pettkus, [1980] 2 S.C.R. 834 (S.C.C.), at 850: ...where one person in a relationship tantamount to spousal prejudices herself in the reasonable expectation of receiving an interest in property and the other person in the relationship freely accepts benefits conferred by the first person in circumstances where he knows or ought to have known of that reasonable expectation, it would be unjust to allow the recipient of the benefit to retain it. 50 More generally, the Court has outlined a two-part approach with respect to this third stage. 51 The first step requires the claimant to show that the benefit was not conferred under any existing category of juristic reasons - i.e. a contract or gift (Kerr at para. 121, citing Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629 (S.C.C.)). The reasonable expectation of the parties can be considered to determine whether the case falls into one of these traditional categories. 52 At the second step, the defendant may suggest a new juristic reason. To do so, the court “can look to all the circumstances of the transaction in order to determine whether there is another reason to deny recovery” (Garland at para. 45). This considers two factors: the reasonable expectation of the parties and public policy considerations (Garland at para. 46). 304 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

53 At both steps, where a “bargain” which does not constitute a binding contract is alleged, such an arrangement could be argued as representing the parties’ reasonable expectations, and evidence of these expectations would be relevant evidence of such a bargain (Kerr at para. 123).

Constructive Trusts 54 A constructive trust is a proprietary remedy required in some in- stances to prevent unjust enrichment (Kerr at para. 50, citing Pettkus at 850-51). It does so by determining the “beneficial entitlement to property” (Kerr at para. 50). As outlined in Rathwell v. Rathwell, [1978] 2 S.C.R. 436 (S.C.C.), at 455, this is done to reach “a result consonant with good conscience” in order to prevent “any man unjustly to appropriate to himself the value earned by the labours of another” (see Pettkus at 844). To this end the doctrine “retains a large measure of remedial flexibility” to allow the courts a way of ensuring fairness in the circumstances (Pacific National Investments Ltd. v. Victoria (City), 2004 SCC 75, [2004] 3 S.C.R. 575 (S.C.C.) at para. 13). Indeed, as stated in Kerr at para. 78: where a claim for unjust enrichment has been made out by the plaintiff, the court may award whatever form of relief is most appropriate so as to ensure that the plaintiff obtains that to which he or she is entitled, regardless of whether the situation would have been governed by common law or equitable doctrines or whether the case would formerly have been considered one for a personal or a proprietary remedy. 55 There are two main limitations to when a constructive trust can be imposed in response to an unjust enrichment. First, there must be a link between the contribution and the property in which the constructive trust is ordered. Second, it must be established that a monetary remedy is inappropriate or insufficient (Kerr at paras. 50-52).

Law and Equity Act 56 Section 37 of the Law and Equity Act provides: 37 (1) Where the court has authority to order the execution of a deed, conveyance, contract, transfer or assignment of any property or other document or to endorse any negotiable instrument, the court may, by order, vest the property in the person and in the manner and for the estates, as would be done by that deed, conveyance, contract, assignment or transfer if it were executed. McInerney v. Laass G.P. Weatherill J. 305

(2) An order made under subsection (1) has the same effect as if the legal or other estate or interest in the property had been actually conveyed by deed or otherwise for the same estate or interest to the person in whom it is ordered to be vested or, in the case of a chose in action, as if the chose in action had been actually assigned to that person. 57 S. 44 provides: 44 Generally in all matters not particularly mentioned in this Act in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity prevail. 58 And s. 59(3) provides: 59(3) A contract respecting land or a disposition of land is not enforceable unless (a) there is, in a writing signed by the party to be charged or by that party’s agent, both an indication that it has been made and a reasonable indication of the subject matter, (b) the party to be charged has done an act, or acquiesced in an act of the party alleging the contract or disposition, that indicates that a contract or disposition not inconsistent with that alleged has been made, or (c) the person alleging the contract or disposition has, in reasonable reliance on it, so changed the person’s position that an inequitable result, having regard to both parties’ interests, can be avoided only by enforcing the contract or disposition.

Discussion 59 Following the Separation Date the parties entered into informal negotiations to resolve all issues between them including the division of family assets. I am satisfied on the evidence that by at least 2009 the parties had settled the division of family assets issue but it had yet to be formally documented. Their agreement included that the petitioner would transfer his ownership in the Property to Ms. Laass. He had given up his beneficial interest in the Property. In exchange, Ms. Laass had given up any claim she had to the Company and to the Pension. Although it is unclear on the evidence what values were assigned to those assets it is clear that, to the Parties, the division of those assets was concluded and they were 306 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

both satisfied with it. They intended to and did proceed in accordance with the agreement they had reached. 60 In my view, both the First Separation Agreement and the Second Sep- aration Agreement respecting the Property, the Company and the Pension were binding on the Parties. While there was no declaration of trust, executed Form A, signed agreement or actual transfer of title, the Parties’ intentions were clear. Ms. Laass was entitled to ownership of the Pro- perty and the petitioner was entitled to ownership of the Company and the Pension. 61 Both parties operated and conducted themselves on the assumption that the major terms of the property division were agreed. They simply had not completed what needed to be done to finalize it. 62 The issue in this case boils down to whether, in the circumstances of Ms. Laass continuing to pay down the mortgage on the Property since separation and otherwise increasing the equity in the property on the reasonable understanding that she was its full owner, the petitioner’s creditors can attach that increased equity in circumstances where Ms. Laass has acted to her detriment. Allowing that attachment would, in effect, result in Ms. Laass unwittingly paying down the petitioner’s debt each month. In my judgement, this would constitute an enrichment to the petitioner with a corresponding deprivation to Ms. Laass. 63 The evidence suggests no reason for this enrichment; rather, the First and Second Separation Agreement and the parties’ actions make it clear that Ms. Laass did not intend to benefit the petitioner. 64 In Frame v. Rai, 2012 BCSC 1876 (B.C. S.C.), Jenkins J. reviewed the authorities with respect to rebutting the statutory presumption in s. 23(2) of the Land Title Act, and determined that it is displaced “in cases where unjust enrichment would otherwise result” (at para. 128). Apply- ing this test, Jenkins J. considered the contributions made to the purchase and maintenance of a property in Surrey, including the plaintiff assuming sole responsibility for mortgage payments, and determined that if the state of the title were upheld the defendant would be enriched and the plaintiff would suffer a corresponding deprivation. He determined that the parties intended to be half owners of the property, and that in light of that agreement it would be contrary to the legitimate expectations of the parties to entitle the defendant to the two-thirds share that the title suggested. As such, he found that the plaintiff successfully rebutted the statutory presumption of the Land Title Act (see Frame at paras. 136-139). McInerney v. Laass G.P. Weatherill J. 307

65 I agree with and adopt the reasoning of Jenkins J. in Frame. I find that if s. 23(2) of the Land Title Act were upheld the petitioner would be unjustly enriched to the detriment of Ms. Laass and contrary to their shared expectations as outlined in the agreement. 66 A remedial constructive trust is then the appropriate remedy in this case (see Frame at para. 141). Given the agreement, Ms. Laass’ reliance on it, and the nature of these proceedings, a monetary award would be inappropriate in the circumstances. There is likewise a clear causal connection between Ms. Laass’ contributions and the preservation and maintenance of the property. 67 Counsel for HSBC referred me to Soulos v. Korkontzilas, [1997] 2 S.C.R. 217 (S.C.C.) as authority that a constructive trust could not be imposed if it would disrupt the interests of creditors. With respect, the conditions outlined in Soulos are limited to where a constructive trust is ordered based on wrongful conduct. Pettkus, and the cases following it, address the prerequisites for a constructive trust based on unjust enrichment (see Soulos at para. 45). The interests of HSBC and the CRA as creditors are valid considerations in making this decision and they had the opportunity to advance their positions (see Ellingsen, Re, 2000 BCCA 458 (B.C. C.A.) at para. 71). The balance of fairness, however, favours Ms. Laass. Acknowledging the agreement in this way results in the petitioner having no interest in the Property that is attachable by HSBC or the CRA.

Order 68 There will be a declaration that the petitioner has no beneficial interest in the Property legally described as: Parcel Identifier No. 009-880-526 Lot 20, District Lot 4046, Cariboo District, Plan 23142 69 There will be an order that Judgment CA2808999 registered in favor of HSBC and any renewals thereof be discharged from the Property’s title. 70 There will be an order the Judgment BBN4061366 registered in favor of the Crown in Right of Canada and any renewals thereof be discharged from the Property’s title. 308 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

Costs 71 The Petitioner and Ms. Laass are entitled to costs. Motion granted. Rider v. Grant 309

[Indexed as: Rider v. Grant] Mark Rider, Plaintiff and Stephen Grant, Defendant Ontario Superior Court of Justice Docket: CV-11-00425824 2015 ONSC 5456 D.A. Wilson J. Heard: April 13-15, 17, 20-21, 27-28, 2015 Judgment: September 15, 2015 Professions and occupations –––– Barristers and solicitors — Employment of lawyer — Retainer — Extent of retainer –––– Husband retained defendant solicitor to draft marriage contract in 1999 for his third marriage — Husband married wife in June 1999 and contract was signed in December 1999 — Hus- band was adversely affected by financial downturn in 2008, as his asset base declined and investments in speculative stocks were worth little — In July 2009, husband suffered cardiac arrest, and, while he was recovering, wife advised that she was leaving marriage — Husband was unable to meet capital requests of company in which he initially began as majority shareholder, and resultingly, his holdings were diluted — Solicitor had acted for husband in family law proceedings against second wife, and solicitor did not ask husband to sign new retainer setting out scope of advice he was being asked to give with respect to contract — Solicitor knew that husband had significant net worth, but did not know extent and nature of wealth — Husband made clear that he wanted protection from equalization of his substantial assets as well as certainty in future — Solic- itor denied that he knew that husband was financial risk-taker or that his plan was to invest in startup businesses and technology companies that were high risk — Husband commenced action for damages against solicitor in part on basis that solicitor was negligent in not including downside clause in marriage contract — Action dismissed — While it would be preferable to have written retainer or notes of initial meeting given parties’ disagreement as to what transpired, absence of them did not mean that solicitor’s evidence ought to be rejected or given little weight — When he retained solicitor in 1999, it was husband who dictated terms of contract — Husband had his own ideas of what he would agree to, and was not client who would follow counsel’s recommendations without question — Husband’s evidence regarding his experience with marriage contracts, and his professed utter reliance on solicitor was not credible — Husband was not neophyte in area of marriage contracts as he suggested in his testimony — Husband was sophisticated businessman, skilled negotiator, and client who had experience with expensive, protracted litigation with former 310 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

spouse — Husband had retained solicitor, who was expert in family law field, to draft marriage contract to ensure that he did not have to share wealth with his wife and to provide certainty and limitation on amount he would have to pay to her in event of marriage breakdown — Husband’s credibility was seriously undermined by his testimony surrounding prior marriage contract. Professions and occupations –––– Barristers and solicitors — Negligence — In conduct of action — Miscellaneous –––– Husband retained solicitor to draft marriage contract in 1999 for his third marriage — Husband married wife in June 1999 and contract was signed in December 1999 — Husband was adversely affected by financial downturn in 2008 — In July 2009, wife advised that she was leaving marriage — Solicitor did not know extent and nature of husband’s wealth — Husband commenced action for damages against solicitor — Action dismissed — Husband was not prepared to make financial disclosure to wife or to solicitor, and there was nothing in evidence to suggest that husband gave solicitor detailed information about nature of his investments such that solicitor ought to have discussed with him use of downside risk clause — Husband was extremely successful, self-made man who made own decisions about investments — It was not incumbent upon solicitor to tell husband that financial success may end — For someone of solicitor’s experience, explanation of equalization of property and net family property would be part of routine speech to client — Solicitor was advised shortly before wedding of serious concerns that wife had regarding contract, and solicitor would have had to discuss contents of letter with husband — Issue of security for payment of lump sum to wife would have to have been discussed then, and solicitor’s evidence that he suggested that husband set aside three million dollars to allay that concern was accepted — Husband’s evidence to effect that he thought that assets he brought in to marriage would remain his alone, and that he would only be obliged to make lump sum payment to wife in event that his wealth increased beyond $40 million was not accepted — Husband negotiated contract with wife and there was no evidence to suggest that he requested variation clause despite his knowledge of such clauses — Solicitor admitted that he did not discuss form of protection from contract were husband’s assets to diminish — Under circumstances, husband was in best position to postulate on what may happen to his assets in future — Standard of care did not demand that solicitor advise wealthy client that he was at risk of having to pay significant amounts under contract if market declined or wealth diminished — Solicitor’s obligation was to explain law and not to advise client on how to manage his investments — Solicitor explained to husband how Family Law Act worked and husband determined quantum of lump sum he was prepared to pay without solicitor’s input — Contract was clear about terms of when payment was due in event of marriage breakdown and husband’s evidence to effect that he did not understand that he was required to make lump payment to wife in event of marriage breakdown, regardless of his financial circumstances, was not accepted — Applicable standard of care did not Rider v. Grant 311 require solicitor to advise husband that he could include downside risk clause and solicitor’s provision of legal services to husband met standard of care of reasonably competent solicitor in circumstances. Cases considered by D.A. Wilson J.: Central & Eastern Trust Co. v. Rafuse (1986), 37 C.C.L.T. 117, (sub nom. Central Trust Co. v. Rafuse) [1986] 2 S.C.R. 147, (sub nom. Central Trust Co. v. Rafuse) 31 D.L.R. (4th) 481, (sub nom. Central Trust Co. v. Rafuse) 69 N.R. 321, (sub nom. Central Trust Co. v. Rafuse) 75 N.S.R. (2d) 109, (sub nom. Central Trust Co. v. Rafuse) 186 A.P.R. 109, 1986 CarswellNS 40, 1986 CarswellNS 135, 42 R.P.R. 161, 34 B.L.R. 187, (sub nom. Central Trust Co. c. Cordon) [1986] R.R.A. 527 (headnote only), [1986] S.C.J. No. 52, EYB 1986-67369 (S.C.C.) — referred to Clements (Litigation Guardian of) v. Clements (2012), 2012 SCC 32, 2012 Car- swellBC 1863, 2012 CarswellBC 1864, [2012] 7 W.W.R. 217, 31 B.C.L.R. (5th) 1, 93 C.C.L.T. (3d) 1, 29 M.V.R. (6th) 1, 346 D.L.R. (4th) 577, (sub nom. Clements v. Clements) 431 N.R. 198, [2012] S.C.J. No. 32, (sub nom. Clements v. Clements) [2012] 2 S.C.R. 181, (sub nom. Clements v. Cle- ments) 331 B.C.A.C. 1, (sub nom. Clements v. Clements) 565 W.A.C. 1 (S.C.C.) — referred to Confederation Life Insurance Co. v. Shepherd, McKenzie, Plaxton, Little & Jen- kins (1996), 88 O.A.C. 398, 1996 CarswellOnt 135, [1996] O.J. No. 177 (Ont. C.A.) — considered Faryna v. Chorny (1951), 4 W.W.R. (N.S.) 171, [1952] 2 D.L.R. 354, 1951 Car- swellBC 133, [1951] B.C.J. No. 152, [1952] 4 W.W.R. 171 (B.C. C.A.) — referred to Folland v. Reardon (2005), 2005 CarswellOnt 232, [2005] O.J. No. 216, (sub nom. G.F. v. Reardon) 194 O.A.C. 201, 249 D.L.R. (4th) 167, 28 C.C.L.T. (3d) 1, 74 O.R. (3d) 688 (Ont. C.A.) — followed Marcus v. Cochrane (2012), 2012 ONSC 146, 2012 CarswellOnt 1472 (Ont. S.C.J.) — referred to Martin v. Goldfarb (1998), 1998 CarswellOnt 3319, 112 O.A.C. 138, [1998] O.J. No. 3403, 163 D.L.R. (4th) 639, 42 C.C.L.T. (2d) 271, 41 O.R. (3d) 161, 44 B.L.R. (2d) 158, 66 O.T.C. 320 (Ont. C.A.) — referred to Moge v. Moge (1992), [1993] 1 W.W.R. 481, 99 D.L.R. (4th) 456, [1992] 3 S.C.R. 813, 81 Man. R. (2d) 161, 30 W.A.C. 161, 43 R.F.L. (3d) 345, 145 N.R. 1, [1993] R.D.F. 168, [1992] S.C.J. No. 107, 1992 CarswellMan 143, 1992 CarswellMan 222, EYB 1992-67141 (S.C.C.) — referred to Morton v. Harper Grey Easton (1995), 8 B.C.L.R. (3d) 53, 1995 CarswellBC 306, [1995] B.C.J. No. 1356 (B.C. S.C.) — considered Ristimaki v. Cooper (2006), 2006 CarswellOnt 2373, 79 O.R. (3d) 648, 26 R.F.L. (6th) 256, 210 O.A.C. 11, 268 D.L.R. (4th) 155, [2006] O.J. No. 1559 (Ont. C.A.) — referred to 312 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

Singer v. Lipman Zener Waxman LLP (2014), 2014 ONSC 4521, 2014 Carswell- Ont 13340 (Ont. S.C.J.) — referred to 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 s. 5 — considered

ACTION by husband against solicitor for negligence in preparation of marriage contract.

Don Jack, Mark van Zandvoort, for Plaintiff Paul J. Pape, Tanya A. Pagliaroli, Joanna Nairn, for Defendant

D.A. Wilson J.:

1 In this action, the Plaintiff Mark Rider [“Rider”] sues his former solicitor Stephen Grant [“Grant”] for negligence arising out of the preparation of a marriage contract [“the contract”] in 1999. Rider claims damages for the amounts he had to pay his former wife, Annie Russell, [“Russell”] pursuant to the terms of the marriage contract as well as the legal fees he paid in litigating the terms of the contract. Rider also claims damages arising from his alleged inability to purchase shares in a company in which he was involved such that he lost his controlling shareholder position.

Background 2 Mark Rider is a businessman, entrepreneur who founded a corporate travel company, Rider Travel Group, in 1982. This was an extremely successful business and in 1998, Rider sold his travel business for $67 million, the amount of which was payable in two tranches: $42.6 million in 1998; and the balance of $25 million in 2000. 3 Rider first married in 1971 in Quebec. There were no children of this marriage and it ended in divorce in 1977. In June 1990, Rider married Louise Leventhal [“Leventhal”] with whom he had a daughter, Courtney. They separated a month later in July 1990. Rider retained counsel, Wil- liam Fanjoy [“Fanjoy”], and entered into a separation agreement dated May 23, 1991 [Exhibit 1, tab 2]. Rider v. Grant D.A. Wilson J. 313

4 Rider encountered problems with custody and access to his daughter and he was referred to Grant in 1995. Eventually, Rider and Leventhal resolved their issues through the execution of Minutes of Settlement in 1997, a resolution which was negotiated by Grant. 5 Rider and Russell decided to marry and set the wedding date for June 13, 1999. Russell had an adopted daughter, Natasha, and she and Rider adopted a newborn baby, Halle, in 1999. Rider was a wealthy man by that point and he wished to have a marriage contract. Negotiations ensued with Russell’s counsel but the contract was not signed as of the wedding date. Rider and Russell married on June 13 as planned, and the marriage contract was eventually signed in December, 1999. 6 In July 2009, Rider had a cardiac arrest and during this period of time, Russell advised Rider that she was ending the marriage. She filed an application in November 2009 requiring that Rider comply with the terms of the marriage contract. He opposed the relief sought, arguing that the marriage contract was not valid and that his net worth had diminished from $40 million at the date of marriage to approximately $18 million at the date of separation. 7 Russell brought a motion for partial summary judgment of certain provisions in the marriage contract. The motion was heard by Justice Belobaba and in written reasons dated September 7, 2010, he granted Russell’s motion. As a result, Rider had to pay Russell approximately $5.6 million. 8 Following the sale of his travel business, Rider was involved in a company he started called TimePlay. It was a technology start-up company and Rider was the majority shareholder. The Plaintiff asserts that as a result of having to pay Russell monies pursuant to the marriage contract he did not have the ability to participate in the further financing of the company and as a consequence, he slipped from the controlling shareholder to holding only 11% of the shares. 9 The negligence action against Grant was commenced in May 2011 claiming damages of approximately $20 million. It is alleged that Grant was negligent in not including a “downside clause” in the marriage contract and as a result, is liable for the damages suffered by Rider. 314 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

Positions of the Parties

The Plaintiff 10 Rider claims that he was unfamiliar with the provisions of the Family Law Act, R.S.O. 1990 c. F.3 [“FLA”] and he did not understand how equalization of Net Family Property [“NFP”] worked. He retained Grant to represent him in the negotiation of a marriage contract with Russell because he had substantial wealth and needed protection. Grant was recommended to Rider as a leader in the family law field so he relied completely on his advice and recommendations. 11 Grant knew that Rider invested in speculative stocks and new companies so he should have taken that into account when drafting the provisions of his marriage contract. Although Rider was extremely successful, his financial future was uncertain. Rider was a risk taker, an entrepreneur who liked to invest in new, unproven companies. Rider wanted to ensure his assets were protected, especially given that Russell had not been employed for a number of years and brought no assets into the marriage. He relied on Grant to ensure he secured the utmost protection for him. 12 There was no discussion between Grant and Rider about what might occur if the Plaintiff’s net worth declined during the marriage. Grant never explained the phrase NFP and he did not review the terms of the contract with Rider prior to signing. At no time was the phrase “downside protection clause” mentioned. Rider was never advised that he would have to pay the amounts set out in the marriage contract regardless of his financial situation in the future. He understood that if his wealth declined he would not have to pay the lump sum set out in the contract. 13 Rider’s assets were adversely affected by the downturn in the econ- omy in 2008. His wealth diminished to $15-$18 million. It was only after Russell sued to enforce the contract that Rider learned there was protection that could have been included in the marriage contract for such catastrophic changes. Grant failed to advise him of the availability of such protection and as such, he was negligent.

The Defendant 14 Stephen Grant was retained by the Plaintiff to draft a marriage contract; Grant was advised by Rider that the negotiations would be done between Rider and Russell. Not only was Rider an extremely sophisticated businessman, he was also experienced in family law matters, having executed a prior marriage contract and having been involved in liti- Rider v. Grant D.A. Wilson J. 315

gation with his former spouse. Rider refused to make full financial disclosure and he negotiated the terms to be included in the contract. Grant advised him to set the $3 million aside, which was a small fraction of his net worth at the time. Rider chose not to accept that recommendation. The marriage contract that was drafted by Grant did exactly what the Plaintiff retained him to do: it protected his assets in the event of a marriage breakdown, protected him from equalization and provided certainty for the future. 15 The Plaintiff’s credibility is seriously in dispute and he ought not to be believed. The expert evidence makes it clear that Grant’s conduct met the standard of care; even the Plaintiff’s own expert conceded that if Grant’s evidence about the events surrounding the drafting and execution of the marriage contract is accepted, there was no breach of the standard of care. In any event, the Plaintiff cannot prove he suffered any damages. The Defendant submits that the claim ought to be dismissed in its entirety.

The Evidence

Mark Rider 16 Mark Rider was born in 1950 and is 65 years of age. After graduating as an engineer, he worked in that profession but eventually left to become an entrepreneur. He founded the Rider Travel Group in 1982; this was a corporate travel company and it became the largest of its kind in Canada. Rider spun off various divisions in the early 1990s and the company was extremely successful. 17 In 1995, Rider experienced difficulties with Leventhal concerning custody and access to Courtney so he retained Grant to represent him. Negotiations ensued between Grant and Leventhal’s lawyer and Minutes of Settlement were signed October 16, 1997 [Exhibit 1, tab 50]. During these negotiations, there was no issue of division of net family property and Rider was unaware of how equalization worked when couples separated. In 1998, Rider sold Rider Travel Group for the sum of $67.6 million which was payable in two tranches: $42.6 million in 1998 and the balance of $25 million in 2000. He wanted to invest in start-up companies. 18 In early 1999, Rider decided to marry Russell and wished to have a marriage contract because he had been building his net worth and felt that he needed protection. The Plaintiff asked Grant to represent him to 316 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

obtain a marriage contract; no new retainer was signed. Rider told Grant about the nature of his businesses and investments and told him that he had sold Rider Travel and received the first instalment of funds. Russell was not bringing any assets with her into the marriage and had not worked for a long time, so Rider needed protection for his significant assets and he relied “utterly” on Grant in this respect. He wished to settle on a lump sum payment for spousal support and property. 19 Rider testified that Grant never explained to him how the provisions of the Family Law Act worked nor did he explain how equalization of NFP worked. There was no discussion about what would happen in the future if Rider’s wealth increased or decreased. Rider testified that he was not aware that a provision could be inserted into the agreement that limited his requirement to pay Russell in the event of a downturn in his wealth. Rider conceded that at the time he was negotiating the marriage contract with Russell he never anticipated any financial losses. It was Rider who negotiated with Russell and advised Grant what to include in the contract. 20 In February 1999, Rider received the first draft of the marriage contract from Grant. There were various points that were left blank as he had to discuss them with Russell, such as the quantum of spousal support and the purchase of a house for her. The agreement was not finalized by the time of the wedding on June 13, 1999, but they proceeded to get married. According to the Plaintiff, there was no discussion with Grant about the consequences of getting married without a signed marriage contract. 21 The lawyers had discussions and on June 8 [exhibit 1, tab 84], counsel for Russell, Ms. Feldman wrote to Grant advising that there had to be changes to the draft marriage contract and she requested full financial disclosure from Rider. Feldman expressed concerns about the quantum of the lump sum support and the purchase of a house for Russell. 22 In October, after Rider and Russell returned from their honeymoon, the discussions about the marriage contract resumed. At trial, Rider agreed his net worth was $77 million at the time his marriage contract was being negotiated, but conceded that he instructed Grant to indicate to Russell’s counsel that his net worth was at least $40 million. According to Rider, it was not that he was trying to hide his actual wealth from Russell; rather, it was impossible to put a number on his worth because of the speculative nature of his investments. Rider was adamant that he told Grant that he had invested in very speculative stocks and start-up companies. Rider was agreeable to making a payment of $3 million for Rider v. Grant D.A. Wilson J. 317

spousal support and property claims and buying Russell a house in Law- rence Park. 23 The final version of the marriage contract was signed in December 1999 [exhibit 1, tab 109]. Rider denied that Grant reviewed the terms of the contract with him before he signed it. Grant never spoke to Rider about the possibility of including a downside protection clause or what would happen in the event that Rider’s fortunes declined over the period of the marriage, despite the fact that Grant was well aware of the risky nature of Rider’s investments. 24 Rider denied that Grant ever advised him to set aside $3 million to ensure he had the funds to make the payments under paragraph 7 of the agreement. He was not told and did not understand that he was required to make the payment to Russell in any event, regardless of his financial circumstances. It was his understanding that the agreement to pay the lump sum of $3 million and the purchase of the house set out in paragraph 7 was conditional on his net worth increasing after marriage. To put it another way, Rider testified that he had an “out” and if his assets did not increase in value by the date of separation, he would not have to make the payment. 25 Rider was adversely affected by the financial downturn in 2008. The stock market declined and Rider’s safe asset base deteriorated. His investments in speculative stocks were worth relatively little. On July 30, 2009, he suffered a cardiac arrest and he was admitted to the Intensive Care Unit of Sunnybrook Hospital. While he was there, Russell told him that she was leaving the marriage and taking the two children. 26 In November 2009, Russell filed a claim for payment in accordance with the executed marriage contract and brought a motion for partial summary judgment. Rider retained Harold Niman to represent him and materials were filed in opposition to the motion, including an affidavit from Rider’s accountant Jason Price. 27 Rider testified that the first time he heard the phrase “downside clause” was at the hearing of the motion for summary judgment, when it was used by Russell’s lawyer during the motion. Russell’s lawyer submitted to the judge that a downside risk clause could have been included in the marriage contract but was not. Justice Belobaba [Exhibit 1, tab 137] rejected Rider’s argument that unanticipated circumstances had occurred since the execution of the marriage contract in that his net worth had deteriorated. Instead, he found that the formation of the contract was unimpeachable. Justice Belobaba did not accept Rider’s argument that 318 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

enforcing the contract would be unconscionable and Rider was ordered to comply with the terms of the contract and he paid Russell approximately $5.6 million. 28 As a result, Rider stated he was short on cash. He had started a company called TimePlay in 2002 and he was the Chairman and majority shareholder. In needed growth capital but because he had no funds he was unable to meet TimePlay’s funding requests in 2010 and 2011. As a result, he went from holding 53% of the shares to 11%, which is demonstrated by the schedule of investments which was filed at exhibit 1, tab 178. 29 Rider testified that had Grant told him of the availability of a downside clause in the event of a decrease in his net worth, Rider would have asked Russell to agree to this term without financial disclosure. If she refused, he would not have married her; if they married without signing the deal and she later refused, Rider would have ended the marriage. He had retained Grant to provide him with the fullest protection possible from a marriage contract and he failed to do this.

Jonathan Hussman 30 Hussman is the president and CEO of TimePlay, a company that provides interactive technology for people at the cinema so they can participate on screen. While Hussman testified about the growth of TimePlay and plans for the future, he was not permitted to offer opinion evidence to the court nor any sort of valuation of the business, as he was not ten- dered as an expert. I made a confidentiality order concerning the evidence of Hussman and for that reason, I will make only limited reference to it. 31 Hussman met Rider and became involved in TimePlay in 2006, with Rider owning 80% of the stocks and Hussman had the balance. Initially, Rider provided the funding for the business but eventually other inves- tors were brought in as the business required capital to go forward. 32 It was contemplated that the existing shareholders would provide financing as required. At some point, Rider was no longer able to meet the capital requests. As a result, his holdings were diluted. Suffice it to say that TimePlay has secured contracts with other companies around the world and it is anticipated that very substantial revenues will be gener- ated from these contracts over the next 2-3 years. The business of TimePlay is continuing to grow and currently is expanding into China and Hong Kong. Rider v. Grant D.A. Wilson J. 319

Jason Price 33 Price has been a chartered accountant since 1987. He met the Plaintiff in 1998 when Price started doing the books for one of Rider’s companies. Over time, Price started doing more of Rider’s wealth management and personal and corporate tax returns. He swore an affidavit dated Au- gust 10, 2010 for use in the family law litigation with Russell [exhibit 1, tab 134]. At that time, Rider had investments in private placements and speculative stocks both of which had very limited markets for resale. He had about $1.5 million in blue chip stocks. He would have needed about $2.2 million to invest in TimePlay in 2010 to maintain his majority position. In 2010, at the same time that the shares were offered in TimePlay, Rider bought Zenn Motor Car stock with cash in the sum of $900,000. Price did not know the reason behind Rider’s decision to invest in Zenn as opposed to TimePlay. Between 2008 and 2012, Rider invested $829,000 in Blackberry based on an investment commitment. He agreed that Rider was a “very active investor” in 2010 according to his broker- age statements.

William Fanjoy 34 Fanjoy is a solicitor who was called to the Ontario Bar in 1983 and acted for the Plaintiff in 1990 for matters arising from his marriage to Leventhal. Specifically, Fanjoy drafted the separation agreement dated May 23, 1991 found at exhibit 1, tab 2. Fanjoy has no independent recollection of his work with Rider but he testified about his standard practices when a client requests a marriage contract. 35 Fanjoy would explain to the client the obligations and entitlements under the FLA and the Divorce Act. He would explain the concepts of equalization and NFP to the client and the benefits and detriments of lump sum payments. It was his practice after a contract had been drafted to review the agreement in full with the client and satisfy himself that the document reflected the client’s instructions and the client understood and agreed with the contract. 36 Fanjoy was asked about the reference to the marriage contract dated June 1, 1990, found at paragraph 1 of the separation agreement. Fanjoy could not say whether he drafted that marriage contract but he was certain that if the separation agreement referred to a schedule, the marriage contract would have been attached to the agreement. To use his words, he “could not conceive of any agreement that referred to a schedule where the schedule was not attached.” 320 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

Sarah Boulby 37 Boulby is a solicitor practicing in family law and was called to the Bar of Ontario in 1993. She was Grant’s junior for about 11 years commencing in 1993. She worked with Grant on the Rider retainer related to his litigation with Leventhal and their daughter. She has a recollection of the Plaintiff; he was a “challenging” client and was not one who was amenable to taking advice. When she advised him against including certain paragraphs in an affidavit, he would not agree to withdraw them as she recommended. 38 In May of 1999, Boulby was asked by Grant for comments on the marriage contract he drafted for the Plaintiff. She reviewed it and had a conversation with Rider on May 6, 1999 [exhibit 1, tab 75]. Boulby recalled that Rider wanted all assets in Russell’s name transferred to him upon separation. Boulby thought this provision would be found by a court to be unduly harsh and unfair. It seemed because Russell was bringing no assets into the marriage, Rider wanted her to leave with no assets as well — a position that was unworkable in Boulby’s mind. In addition, Rider wanted to deduct child support payments from the lump sum payment for spousal support, an idea she described as “extraordinary” because child support is never tied to spousal support. She had concerns about the enforceability of the marriage contract with the terms Rider was insisting upon. She recalled that Rider did not reveal to her his net worth. 39 In response to a question about Grant’s note-taking practices when she worked with him, Boulby testified that he did not make notes or dockets of every interaction with a client; his notes were “sparse”.

Stephen Grant 40 Stephen Grant [“Grant”] was called to the Bar of Ontario in 1975 and has specialized in the practice of family law for most of his career. With- out a doubt, Grant has had a distinguished career; he received the Law Society Medal in 2006; he is a fellow of the American College of Trial Lawyers and the International Academy of Trial Lawyers; he served on the Board of Governors of the International Academy of Matrimonial Lawyers; and he is the Editor-in-Chief of the Advocates’ Journal. He has been an invited speaker at countless continuing education conferences and has written extensively on family law issues. Grant continues to practice family law and also does mediations and arbitrations. Rider v. Grant D.A. Wilson J. 321

41 Grant has been involved in providing advice on at least 50 marriage contracts and he has spoken on the subject of marriage contracts at numerous educational conferences. In Grant’s experience, courts will up- hold a marriage contract if it is not unconscionable and there was no duress when it was executed. The closer the contract is to the outcome under the legislation, the more likely it will be upheld. As a result, a lawyer has to be scrupulous when drafting a marriage contract. The court will consider whether financial disclosure was properly and fully made, whether it meets the objectives of the Divorce Act and whether it is fair in all of the circumstances. 42 Grant had never heard the term “downside clause” until he saw it in the Statement of Claim. He noted that variation clauses, which include material or catastrophic change clauses, are often seen in separation agreements. They are not usually contained in marriage contracts because parties who execute marriage contracts are trying to achieve certainty and variation clauses do not accomplish this objective. To demonstrate a material change in circumstances is a fairly low threshold; however, a catastrophic change is one that is very significant. In the event of a catastrophic change in circumstances, a party applies to the court for a different allocation than is provided for in the contract. If a catastrophic change clause is used in a marriage contract, it is difficult for the court to interpret what constitutes a catastrophic change so usually the contract contains a definition of the term. 43 In 1999, when asked to draft a marriage contract, Grant’s practice was to meet with the client and ascertain the client’s objectives. Grant would discuss the concept of equalization and the risks. Grant had a standard speech that he used with clients when telling them about the certainties and the risks of marriage contracts. He explained that there was always an overriding judicial discretion which depended on whether or not the contract was perceived as fair. He always advised clients that if there wasn’t full and frank disclosure when the contract was negotiated, there was an enhanced risk that the contract would be seen as unfair and might well be set aside. He would take notes from time to time, but not on every occasion that he had contact with a client. Grant followed his usual practice in this case. 44 Grant recalled that when he was retained by the Plaintiff in 1995 to deal with Leventhal on custody and access to his daughter, Rider was difficult and he did not take advice easily. Rider was not forthcoming about his financial circumstances. Eventually, the parties executed Min- 322 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

utes of Settlement in October 1997. It included a term wherein the parties agreed that neither would apply to vary the child support provisions except for a catastrophic change in circumstances [Exhibit 1, tab 50]. 45 In February 1999, Rider requested Grant’s services to draft a marriage contract as he was planning on getting married again. Grant did not have Rider sign a new retainer which set out the scope of the advice he was being asked to give. Grant agreed that there was no limitation on his retainer. He knew Rider was a wealthy man and Rider made it clear he wanted protection from equalization of his substantial assets as well as certainty in the future. He did not want to face expensive litigation if the marriage failed, as he had with Leventhal. 46 Grant knew that he had sold Rider Travel Group but he did not know the particulars. Grant met with Rider at his office and explained the provisions of the FLA and the need for financial disclosure. His net worth was significant and was increasing; he did not want to be forced to make financial disclosure. Rider’s objective from the marriage contract was predictability and certainty; he did not want to have to revisit its terms if the marriage did not work out. According to Grant, Rider was very successful and was bullish about his continued success. 47 Grant knew that Rider was an entrepreneur. Grant knew that Rider had built a travel business and had sold it for a huge profit and planned to invest in other businesses. Grant knew that Rider had a significant net worth but he did not know the precise extent and nature of his wealth. Grant denied that he knew Rider was a risk taker or that his plan was to invest in startup businesses and technology companies that were high risk. 48 Rider advised Grant that he would discuss the issue of spousal support and property with Russell and then Grant would draft the operative terms of the agreement. Grant wanted to ensure the contract would not be vulnerable to attack. Grant drafted the contract in February, 1999 [exhibit 1, tab 72]. Clause 6 provided that each party would remain separate for property and would not make any claims against the other’s property and there would be no claim for equalization of net family property. The agreement contained a provision that there would be no variation of contractual terms. 49 Grant spoke to Russell’s lawyer and she expressed concerns about Rider’s net worth. The agreement was re-drafted in May and Rider indicated he wanted a lump sum payment to be made depending on the length of the marriage. On June 7, 1999, Rider called Grant and indicated Rider v. Grant D.A. Wilson J. 323

that he was agreeable to buying a house for Russell in Lawrence Park along with a lump sum of $3 million. The marriage contract was re- drafted again and sent to Russell’s lawyer, Ms. Feldman. 50 On June 8, Ms. Feldman wrote to advise that Russell was demanding full financial disclosure and there were concerns over the quantum of the lump sum support payment and the lack of security for it. She indicated that her client would not be signing the marriage contract prior to the wedding. 51 Grant spoke to Rider and advised him of the contents of Ms. Feld- man’s letter. Grant advised Rider that he ought to set aside the lump sum payment so that it would always be available as that payment had to be made regardless of what occurred in the future in terms of his wealth. According to Grant, Rider rebuffed these suggestions, telling Grant that he knew how to manage his own investments. Grant advised him that even if he had a reversal of fortune, he would still have to make the payments set out in the contract. The marriage contract was not signed prior to the wedding on June 13, 1999. Rider instructed Grant that he could advise Russell’s lawyer that his worth was at least $40 million. 52 Meanwhile, the litigation with Leventhal over the children continued. Grant recalled a very unpleasant exchange with Rider in August 1999 in which Rider demanded Grant attend court the following day. When Grant told him he could not act unilaterally, Rider became abusive and started to scream at him. Grant testified that he had never been spoken to in such a fashion by a client. 53 In November 1999, a further draft contract was sent to Rider. He met with Rider on December 21, 1999 and reviewed the agreement with him. The final version of the contract was signed and Grant witnessed his signature and executed the certificate of Independent Legal Advice. He satisfied himself that Rider understood the nature and consequences of the agreement. 54 Grant had no further contact with Rider until August 22, 2005 when Grant was contacted by the Plaintiff who advised that he and Russell were discussing separation or had separated. He said his net worth was down over the course of the marriage, that a significant percentage of his net worth was in speculative investments and 25 percent was in technology stocks and further, that he had assets offshore. Grant did not believe there was any discussion about the marriage contract on that date. His notes from this conversation are located at tab 121 of Exhibit 1. 324 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

55 Sometime in 2009, Grant was contacted by Amy Richardson, Rider’s executive assistant. She advised that Rider had suffered some serious health issues and he had experienced some financial reversals and wished Grant to “get him out of the contract.” Grant thought it might develop into litigation and he referred Rider to Harold Niman, a well-known and respected family lawyer. 56 Grant denied there was ever a conversation with Rider in which Rider stated that he understood that Russell would not get the payments if Rider’s net worth decreased. Grant stated that he and Rider never discussed what would happen if his assets decreased in value to below $40 million and there was never a discussion that he would not be obligated to make the payments as set out in the contract. The first time Grant heard this description of Rider’s understanding of the marriage contract was during the trial. 57 Grant disagreed that a lawyer had to alert a client that his or her fortune might decline when drafting a marriage contract; rather, he said it depended on the circumstances. With respect to Rider, he was a very successful, sophisticated businessman and he was in the best position to know about how his fortunes might play out in the future. 58 Grant agreed that there was no discussion of including a downside clause in the marriage contract because it was inconsistent with what Grant understood of Rider’s objectives. Rider wanted to ensure that if the marriage failed, Russell would make no claim against his assets, there would be no equalization and he wanted certainty with respect to his obligations. As a result, Grant did not feel it necessary to raise the possibility of a downturn in his financial success with Rider and the possible inclusion of a downside clause. He had discussed the operation of the FLA with Rider and how equalization and net family property worked. He confirmed with him that the payments pursuant to the contract were due in any event upon the demise of the marriage. Grant was confident he fulfilled the mandate under his retainer.

The Experts

Douglas Morton 59 Douglas Morton [“Morton”] is a solicitor who was called to the On- tario Bar in 1967. He has been practicing exclusively in the area of family law in Hamilton since the 1980s. He was certified as a specialist by Rider v. Grant D.A. Wilson J. 325

the Law Society of Upper Canada in 1991. Morton testified that he drafts approximately 15 or 20 marriage contracts annually. 60 Morton was retained by the Plaintiff to provide an opinion on the marriage contract prepared by Grant. He was qualified by the court as an expert in family law and was entitled to offer an opinion on the standard of care as well as in the area of the likely support Rider would have to pay. 61 Morton testified that a solicitor is required to bring reasonable care, skill and knowledge to the work he has been retained to do and that if the lawyer holds himself out as having expertise in a certain area of law, a higher standard of care applies. According to Morton, the Defendant is a leading family lawyer in Ontario and thus will be held to a higher standard of care in the work that he undertakes. He did not describe what constituted the higher standard of care. 62 Morton stated that there is a disparity between the evidence of the Plaintiff and of the Defendant concerning what was discussed during their meetings. Morton acknowledged that credibility is central in this case and he agreed that if Grant’s version of events is accepted, he met the standard of care. However, if the Plaintiff’s testimony is accepted, the Defendant fell below the standard of care. 63 Assuming Rider’s evidence is found to be accurate, Morton is of the opinion that Grant was negligent because he failed to advise Rider about section 5 of the FLA and its application. Grant knew that the Plaintiff was a wealthy man who invested in speculative investments. He retained Grant to protect him in the event of a marital breakdown; as his solicitor, Grant needed to explain how equalization worked and how best to protect his assets in the event of a marriage breakdown. There ought to have been a discussion with Rider about the various scenarios that could come to reality in the future and in particular, what might happen if his wealth diminished. 64 Morton was critical of Grant for failing to open a separate file when he was retained by Rider in 1999 and failing to have a new retainer agreement signed. Had he done so, this might have assisted with the scope of work that was expected of Grant. Furthermore, there were no dockets which could have corroborated his evidence about the discussions he had with Rider concerning the operation of section 5 of the FLA. Morton is of the opinion that if there is a conflict in the recollec- tions of the client and the solicitor, the client’s version of events is to be accepted by the court. 326 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

65 Morton testified that although the Plaintiff was a sophisticated businessman, he had little understanding of how section 5 of the FLA operated in the case of a diminution of wealth and he relied on his lawyer to inform him of this. In Morton’s experience, most clients do not understand how the concept of NFP works so lawyers must take care to explain this to their clients. Grant failed to meet the standard of care in the provision of legal services to Rider because he failed to explain how section 5 operated and that if Rider suffered financial losses over the course of the marriage, he would not have to pay equalization upon separation. 66 Morton expressed the opinion that there ought to have been a clause included in the marriage contract to limit Russell’s recovery in the event of financial losses to Rider; the inclusion of a catastrophic change clause should have been discussed with Rider. Grant’s failure to advise Rider of the availability of a downside risk clause fell below the standard of care of a reasonable and prudent solicitor practicing family law. Morton agreed that he had not heard of the term “downside risk clause” prior to this lawsuit; he referred to these paragraphs as “catastrophic change” clauses. Had such a clause been included in the contract, given that the wealth of the Plaintiff decreased from “at least $40 million” over the years of the marriage, upon separation, Russell would have received no equalization payment, although she would still have been entitled to spousal support. Morton acknowledged that whether or not Russell would have agreed to the inclusion of a catastrophic change clause was a matter of speculation. Morton stated that downside risk clauses were in prominent use in marriage contracts in 1999. 67 Morton testified that Rider would have emerged in a much better financial situation at the end of the marriage if he had a marriage contract with a downside risk clause included or alternatively, if there was no signed agreement and the FLA governed. On the facts of the case, with the downturn in the Plaintiff’s fortunes, his NFP would have been zero and Russell would have received no payment. 68 Morton was asked to determine what amount of spousal support Rus- sell would have likely been entitled to had there been no signed marriage contract. He used Rider’s declared income of $97,000 from line 150 of his 2009 income tax return. He is of the view that Russell would be entitled to support based on need, not compensatory support, and Morton offered the opinion that Russell would likely be awarded a lump sum payment of roughly $85,000 or $1,218 per month over 7.5 years. Rider v. Grant D.A. Wilson J. 327

69 In cross examination, Morton conceded that he relied on the testimony of Rider while the defence experts accepted the evidence of Grant as accurate. However, he maintained that it is a breach of the standard of care for a family lawyer in 1999 to have failed to advise a wealthy client that if the market declined and his wealth diminished, he was at risk of having to make payments of significant amounts of money pursuant to the marriage contract.

H. Hunter Phillips 70 H. Hunter Phillips [“Phillips”] was retained by the Defendant to provide an opinion on the standard of care. Phillips was called to the Bar of Ontario in 1975 and has practiced exclusively in the area of family law in Ottawa since 1979. He has an impressive curriculum vitae, and has lec- tured on the subject of marriage contracts at numerous continuing education conferences. As part of his practice, Phillips has drafted marriage contracts for clients on a regular basis since the early 1990s. At the present time, he estimated that he drafts perhaps 10-12 marriage contracts a year. He was qualified as an expert entitled to opine on the standard of care for a lawyer practicing in the area of family law and specifically, on marriage contracts. 71 Phillips noted that the evidence of Rider concerning his interactions with Grant and his instructions to Grant differed significantly from the evidence of Grant on the same points. Phillips agreed with the Plaintiff expert that if Rider’s evidence is accepted as accurate, Grant fell below the standard of care of a reasonable lawyer acting for a client who needed a marriage contract. On the other hand, if the evidence of Grant is accepted, then he met and exceeded the standard of care of a family law specialist. 72 When a client requests the lawyer draft a marriage contract, it is always difficult to know what the circumstances will be in the future so out of necessity there is a certain amount of “crystal ball gazing.” Phillips had never heard of the term “downside clause” before he was retained on this case. He is familiar with the term “catastrophic change clause” which is used in separation agreements, and not marriage contracts, in his experience. The catastrophic change clause is generally used in a separation agreement with reference to the ongoing spousal support payments, where a party wants to revisit the obligation to pay upon a radical change in the ability to pay. In such a case, there must be a definition of what constitutes a catastrophic change, what the income level would 328 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

have to diminish to. In Phillips’s experience, catastrophic change clauses are used for ongoing payments of spousal support, not lump sum payments,. 73 If Rider had wanted to insert a catastrophic change clause in the marriage contract to limit his obligation to pay in the event of a downturn in his fortunes, he would have had to make significant financial disclosure in order to determine the definition of a catastrophic change. Rider made it clear that he refused to provide financial disclosure. Furthermore, if a party wishes a downside clause to be included, generally the other party will insist on an upside clause. 74 Phillips understood that Rider wanted certainty from the marriage contract and he did the negotiating with Russell directly after receiving advice from Grant. Phillips stated that Russell would be entitled to spousal support and the marriage contract was intended to deal with all claims for property and spousal support. Thus, if she was not getting property as part of the settlement and she had no income of her own, the court would consider that when determining the proper amount of spousal support. The court would also consider the ability of the payor to make the payments and in doing so, would not be restricted to his taxable income. Income can be imputed for the purposes of spousal support. In the opinion of Phillips, even without a marriage contract, Russell would have had a significant claim for spousal support based on the facts of this case. Phillips is of the opinion that Grant’s action met the standard of care and he was not negligent.

Thomas Dart 75 Thomas Dart [“Dart”] was asked by the defence to provide an opinion on whether or not Grant met the standard of care with respect to the provision of legal services to the Plaintiff. He was also requested to provide an opinion on the amount of spousal support payable by Rider on separation in the absence of the signed marriage contract. 76 Dart was called to the Bar of Ontario in 1976 and has practiced in the area of family law in Barrie since 1982. Dart has impressive experience in the area of family law including being president of the Ontario Bar Association Family Law Section, and being a speaker at many continuing education programmes in family law. He has advised, drafted and litigated marriage contracts since 1999. He was qualified as an expert entitled to offer opinion evidence in the area of family law, including spousal support. Rider v. Grant D.A. Wilson J. 329

77 Dart assumed that Grant’s evidence was accurate: that Grant explained to Rider the concept of equalization under the FLA; that the lump sum payment of $3 million was due in any event and that Grant advised Rider to set funds aside for payment; and that there was no discussion of a variation clause or what would happen if there was a downturn in his financial situation. 78 Dart testified that a marriage contract is quite different from a separation agreement and the lawyer must explain to the client how equalization of net family property and spousal support works under the FLA. The client must be told that marriage contracts can be set aside by the court so it is essential that full financial disclosure be made and that the contract as a whole is seen as being reasonably fair to both parties. 79 Dart had never heard the phrase “downside clause” before he was involved in this case. He was familiar with catastrophic change clauses which were usually contained in separation agreements. In his experience, these catastrophic change clauses mean that based on a current financial situation, the payer will pay a certain amount and the other party agrees not to move to vary unless there is a catastrophic change in circumstances, in which case the payer wishes to review the amount to be paid. In such a situation, there must be a definition of what constitutes a catastrophic change. Like Phillips, Dart has never seen a catastrophic change clause used in a marriage contract. If Rider wanted certainty in his financial obligations to Russell under the marriage contract, inserting a catastrophic change clause would not have achieved that goal. 80 In Dart’s view, if Rider insisted on the inclusion of a catastrophic change clause, the solicitor acting for Russell would have insisted on financial disclosure and on the inclusion of a provision of an upside clause. In Dart’s experience, a court will not give effect to a marriage contract if there has been failure to disclose assets or debts, if there was duress or if the contract results in unconscionable circumstances. If the marriage contract provided only that Russell shared in financial downturn and not in the upturn as Rider wished, it is unlikely it would have been upheld by the court. 81 Dart testified that in 1999, it was not the standard of practice to record the advice a solicitor gave a client and it was not negligent not to keep notes of meeting or telephone calls. Dart is of the opinion that the standard of care is the same for any lawyer providing services to a client for a marriage contract and the fact that Grant was regarded as a specialist in the area makes no difference to the standard of care. He testified 330 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

that he is of the opinion that Grant met the applicable standard of care in this case. 82 Dart was asked about the issue of spousal support. In his opinion, Russell was entitled to compensatory support as she did not work outside the home and she looked after their children. Russell had not worked since 1991 at the time of separation and was 49 years old. She had little income-earning potential and was used to a high lifestyle, so Dart thought she would be entitled to generous spousal support. Dart is of the view that a court would order spousal support for a minimum of 7.5 years. 83 Dart conceded that he did not undertake a financial analysis but rather was articulating the possibilities that might have occurred had there been no marriage contract and Russell pursued her entitlement to spousal support. While it was difficult to estimate Rider’s support obligations due to lack of financial disclosure, in Dart’s opinion, Rider’s income for support purposes could range from $980,000 to $3.5 million for 2010. In the first scenario, imputing income of $350,000 to Rider using the spousal support advisory guidelines, Rider would pay spousal support on a monthly basis of between $26,206 to $30,629, assuming he was paying child support for Halle in the sum of $7,396 per month. Assuming 7.5 years of spousal support using the mid-point $28,417 yields a lump sum of $1,492,032. If one assumes spousal support was payable for a period of 10 years, the lump sum amount would be $1,973,434. 84 Under the second scenario, imputing income of $3.5 million, he would pay spousal support of $96,287 to $111,223 and the child support payments would be $26,044 per month. The lump sum equivalent of the mid-point number is $5,037,607 assuming duration of 7.5 years. If the spousal support payment period was 10 years, the lump sum number is $6,662,984. 85 Dart concluded that if Rider had not signed the marriage contract in light of his significant spousal and child support obligations, ultimately the payments Rider made under the contract would have been similar to his financial obligations for support payments. Rider v. Grant D.A. Wilson J. 331

Analysis

Liability Standard of Care 86 Counsel agree that the applicable standard of care is that of a reasonably competent solicitor: Ristimaki v. Cooper.1 A lawyer who is retained must bring “reasonable care, skill and knowledge to the professional service which he or she has undertaken.”2 As well, “a solicitor’s conduct must be viewed in the context of the surrounding circumstances. The reasonableness of the lawyer’s impugned conduct is judged in light of the surrounding circumstances such as the time available to complete the work, the nature of the client’s instructions, and the experience and sophistication of the client.”3 87 The experts did not agree on whether a solicitor who holds himself or herself out as having certain expertise in a particular area is held to a higher standard of care. Mr. Morton, who testified on behalf of the Plain- tiff, said Grant would be held to a higher standard and counsel cited Confederation Life Insurance Co. v. Shepherd, McKenzie, Plaxton, Little & Jenkins.4 Mr. Dart disagreed but said that even if a higher standard applied, Grant met it. 88 Without a doubt, at the time of these events, Grant was one of the foremost experts in Ontario on family law. Rider testified that he retained Grant on the basis of the recommendation of a lawyer who said Grant was the top in his field. While the Plaintiff argues that Grant ought to be held to a higher standard of care because of his expertise, there was no evidence led as to how the higher standard differed from the standard of a reasonably competent solicitor. 89 In any event, I agree with the submissions of Mr. Pape that this particular issue has little relevance to my determination of whether or not Grant was negligent. Instead, the issue of credibility is central to my de-

1 Ristimaki v. Cooper (2006), 79 O.R. (3d) 648 (Ont. C.A.). 2 Central & Eastern Trust Co. v. Rafuse, [1986] 2 S.C.R. 147 (S.C.C.) at para. 66. 3 Singer v. Lipman Zener Waxman LLP, 2014 ONSC 4521, 2014 CarswellOnt 13340 (Ont. S.C.J.) at para. 110. 4 Confederation Life Insurance Co. v. Shepherd, McKenzie, Plaxton, Little & Jenkins (1996), 88 O.A.C. 398 (Ont. C.A.) 332 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

termination of the negligence issue; and credibility must be decided in light of the facts which are particular to this case. The parties do not agree on what requests Rider made of Grant, what information was provided by him, what his objectives were for the marriage contract or what advice Grant provided to Rider. In short, they do not agree on why Rider sought a marriage contract and what Grant did to accomplish those objectives.

Credibility 90 In deciding issues of credibility, it is not simply a matter of accepting the evidence of one party over another based on how the witness performed in the witness box. Rather, “the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”5

General Comments 91 On the issue of credibility, counsel for the Plaintiff submits that Grant failed to produce notes or dockets to corroborate his version of significant events in this file and argues that where the evidence differs between the parties, it is the recollection of the client which ought to be given preference. While the Plaintiff expert, Morton, referred to Morton v. Harper Grey Easton6 as support for this proposition, I do not accept it as an accurate statement of the law. 92 Rather, the trial judge in Morton noted, at para. 34, “It was my view that, all other things being equal, where there is a conflict between the version of the client and the version of the solicitor, the version of the client is to be preferred.” In the case before me, there are significant issues of credibility between the parties, which I will elaborate on, such that it is not a situation where “all other things are equal”. 93 Grant had some notes of his meetings and telephone calls with Rider. Boulby stated that it was not Grant’s practice to record every meeting or phone call with a client and Grant concurred. I reject the submission of the Plaintiff that the absence of notes by Grant during the initial meeting with Rider on February 1, 1999 is “crucially important to this case.”

5 Faryna v. Chorny (1951), [1952] 2 D.L.R. 354 (B.C. C.A.). 6 Morton v. Harper Grey Easton (1995), 8 B.C.L.R. (3d) 53 (B.C. S.C.). Rider v. Grant D.A. Wilson J. 333

While it would be preferable to have a written retainer or notes of the initial meeting given the disagreement of the parties as to what transpired, the absence of them does not mean that the lawyer’s evidence ought to be rejected or given little weight by the court. The lack of notes is a factor to be taken into consideration, along with other factors, in determining the credibility issues. 94 It is not disputed that a lawyer who does not adequately or diligently protect the client’s interest will be found negligent.7 What constitutes adequate protection in the circumstances will turn on the facts of each particular case. In this case, what objectives did Rider tell Grant he wanted to achieve from the marriage contract? What advice did Grant give Rider to obtain those goals? Did Rider understand the consequences of the contract he eventually signed? The evidence differs on these critical issues. 95 The three experts who testified agreed that if Grant’s evidence is accepted by the court as to what transpired, the standard of care was met and he was not negligent. 96 Without a doubt, Rider is an intelligent man, a sophisticated and extremely successful entrepreneur. I accept the description of Rider given by Boulby: he was a challenging client, very opinionated and not one to take advice readily. Boulby, in my view, was a disinterested witness. She has not worked with Grant in over a decade and they are not social friends. She worked with Grant on Rider’s litigation with Leventhal in 1995-96 and again in 1999 on the marriage contract which is the subject of this litigation, so she was in a good position to comment on her interactions with the Plaintiff. Her memos which were contemporaneous with the events make it clear that in 1995, when she was assisting Grant in drafting an application which required an affidavit from Rider, he was insistent on including details which his counsel advised him against. This is abundantly clear from the documents at tabs 7, 8, 9, 10, 11, 12 and 13 of Exhibit 1. He was not listening to the advice of his experienced counsel but was insisting on doing it “his way”. 97 At tab 19 is a transcription of a voicemail message from Rider which makes it clear that he was “directing” his lawyers to do what he wanted them to do; he was not soliciting their advice about what steps to take to achieve his ends. The tone of the voicemail is demanding and imperious

7 Stephen M. Grant & Linda R. Rothstein, Lawyers’ Professional Liability, 2nd ed. (Markham: Butterworths, 1998). 334 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

and makes it clear that Rider was not the sort of client who accepted the advice of his lawyer without question. 98 Similarly, when he retained Grant in 1999, it was Rider who was dic- tating the terms of the contract; that he had very definite ideas about what he was prepared to do, which even his own lawyer described as unusual and harsh. I say this not to be critical of Rider but simply to illustrate his comport as a client. Some clients follow their counsel’s recommendations without question and others have their own ideas of what they will and will not agree to; clearly, Rider falls into the latter category. 99 Furthermore, Rider’s demeanour in the witness box was aggressive, arrogant and, at times, evasive. He refused to concede even small points that, in my opinion, ought to have been readily conceded. At trial, he attempted to portray himself as a client who knew little of how family law worked; indeed, he testified that he relied “utterly” on Grant when negotiating the marriage contract. I reject this evidence; it is self-serving and disingenuous. 100 I found the Defendant to be an honest, straightforward witness who answered questions directly. He was candid in his acknowledgement that he did not have a perfect recollection of every encounter with Rider; and that he did not docket or make a memo of each event in the file. He admitted things which were not helpful to his case and in my view, his evidence was consistent and he performed well under cross examination. 101 There are certain key issues on which the evidence of the parties differed significantly. I will address each issue separately.

What was the nature of Grant’s retainer? 102 Rider retained Grant in February 1999 because he had decided to marry again. There was no written retainer signed; Grant previously represented Rider in his dispute with Leventhal. Rider asserts that he retained Grant to create a marriage contract that contained the utmost protection for his assets, which were considerable at that time. He wanted protection from equalization for his assets since Russell was not bringing any assets to the marriage and he relied on Grant to effect this through a marriage contract. He wanted finality from the contract so that Russell could not pursue him later for additional money, an experience he went through with Leventhal. I agree with the conclusion of Justice Belobaba in his reasons on the Summary Judgment motion: “Having been married twice before, Mark wanted the certainty of a predetermined matrimonial Rider v. Grant D.A. Wilson J. 335

agreement...a global resolution of property and spousal support in the event of a separation.” 103 Rider attempted to portray himself as a neophyte in the area of marriage contracts and variation clauses specifically dealing with spousal support and property. Rider testified that during the initial meeting, there was no discussion about how the FLA operated or about the inclusion of a variation clause. Rider alleges he was not aware of the availability of including variation clauses in agreements. What his level of knowledge and experience was as of 1999 is relevant, in light of this evidence. Rider’s experience with marriage contracts, separation agreements and concepts such as “catastrophic change in circumstances”, “equalization” and “variation” is of significance. The evidence of the parties differs on this issue and credibility must be determined. 104 Rider acknowledged that the 1991 separation agreement included the phrase “material change in circumstances” and that he understood under the terms of that agreement neither party could make an application to vary its terms. The separation agreement he signed with his prior wife, Leventhal, [exhibit 1, tab 2] made reference to their marriage contract dated June 1, 1990 as well as to equalization of NFP. The contract itself was not appended to the agreement and Rider denied that he and Leventhal ever signed a marriage contract, despite the reference to it in their separation agreement. Rider was adamant that he had not signed a marriage contract with Leventhal and he refused to concede the possibility that it was possible he had done so. 105 In determining credibility on the issue of Rider’s knowledge and experience with prior agreements and variation clauses, I consider the evidence which emanates from his prior solicitor, William Fanjoy. I was impressed with Fanjoy; he gave his evidence in a straightforward fashion, answered questions directly and was candid in his admission that he had no specific recollection of his involvement with Rider, which is not surprising given the 25 years that had passed since he was his client. I accept his evidence about his normal procedure when discussing contracts with clients, given his extensive experience in the area of family law. 106 Specifically, I accept his evidence that the separation agreement that he negotiated for the Plaintiff concerning his marriage to Leventhal made reference to a marriage contract which was attached. While Fanjoy could not say whether he drafted the contract, he was certain he would have reviewed it and ensured it was attached to the agreement. Thus, I prefer 336 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

his evidence on this point over that of the Plaintiff who was adamant that he had never entered into a marriage contract with Leventhal. That would be surprising given his considerable wealth at the time of his marriage to Leventhal and his sophistication as a businessman. It also contradicts the documentary evidence in this case. While Fanjoy was not able to locate the actual file, his file card was filed as exhibit 7 and it referred to the file as “Litigation-Matrimonial-Marriage Contract”. If there was never a marriage contract, this file card makes no sense. 107 While the solicitor for the Plaintiff submitted that there was no persuasive evidence of a prior marriage contract and asked that an adverse inference be drawn against the defence for failure to call Leventhal as a witness, I reject this submission. Given Rider’s evidence that he had never signed a marriage contract prior to 1999, it was open to the Plain- tiff to call Leventhal as a witness to corroborate his testimony on this point. If there is any adverse inference to be drawn from the failure to hear from Leventhal at trial, in my view, it would be drawn against the Plaintiff. However, on the evidence before me, it is unnecessary to draw that inference as there was other evidence that I found persuasive, specifically the testimony of Fanjoy. 108 Rider’s evidence on the existence of a prior marriage contract is not reasonable or reliable and, in my opinion, causes me real concern about his credibility. Perhaps he had no recollection of whether or not he signed a marriage contract with Leventhal or whether Fanjoy explained how division of property worked under the FLA. If that was the case, he ought to have admitted to a failure of memory. He refused to do so and instead, invited the court to conclude that his evidence was accurate and the documents and testimony of Fanjoy were both wrong. Given that Fanjoy executed a certificate of ILA, a serious document for a solicitor to sign, it is particularly troublesome that Rider would “throw him under the bus” in order to bolster his case against Grant. 109 Furthermore, Rider testified that he did not understand that a variation clause could have been included in his marriage contract. However, his separation agreement with Leventhal made specific reference to acknowledging that his financial circumstances might change in the future and he agreed that not even a catastrophic change in circumstances would give rise to changing the terms of the agreement. When he was negotiating the settlement of the litigation with Leventhal over Courtney, he proposed that the child support payments he made would “only be reviewable in the event of a material change in circumstance including a Rider v. Grant D.A. Wilson J. 337

substantial decrease in his income.” [exhibit 1, tab 49]. He refused to agree that he was aware back in 1991 that parties could include terms in an agreement that would provide protection in the event of a catastrophic change in financial circumstances. 110 Instead, he attempted to explain the reference to the variation clause in the separation agreement by stating that it dealt with child support and he did not know such a clause could also apply to spousal support and division of property. In response to a question from Mr. Pape in cross examination, Rider said that he could not make the “intellectual leap” from including such a clause in an agreement dealing with child support to including it in an agreement dealing with property. I do not accept this as accurate; instead it was a rather lame attempt to explain the inconsis- tency in his testimony. Rider is and was clearly a very sophisticated businessman who was comfortable negotiating terms of agreements. To suggest that he relied on Grant to discuss all of the possible terms of a marriage contract and that he relied on his lawyer to educate him in this area is unrealistic on the facts of this case. 111 Similarly, Rider denied that he was advised of his rights under the FLA, even though paragraph 17 of the agreement makes reference to equalization of NFP and confirms that he was advised of his rights under the FLA by his lawyer. He went as far as to deny that his counsel at the time, Fanjoy, who signed the certificate of independent legal advice on May 23, 1991, ever explained to him how the FLA operated, what equalization of NFP was or what his rights and obligations were under the FLA. 112 Fanjoy testified that it was his standard practice to go over an agreement with a client prior to its execution and before signing the certificate of independent legal advice to ensure the client understood it and that it was accurate. I find as a fact that Fanjoy would have explained to Rider how the provisions of the FLA worked, specifically, equalization of property and that Fanjoy would have ensured Rider understood the agreement prior to signing it. I reject Rider’s testimony that Fanjoy signed the certificate of ILA without explaining to him how equalization operated or what his rights were in law. 113 I do not find Rider’s evidence on his experience with marriage contracts and his professed “utter” reliance on Grant to be credible. He was not a neophyte in the area of marriage contracts as he suggested in his testimony. He was a sophisticated businessman, a skilled negotiator and a client who had been down the road of expensive, protracted litigation 338 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

with a former spouse. He retained Grant, an expert in the area of family law, to draft a marriage contract to ensure that he did not have to share his considerable wealth with Russell and to provide certainty and limitation on the amount he would have to pay to her in the event of a marriage breakdown. Rider’s credibility was seriously undermined by his testimony surrounding the prior marriage contract.

What did Grant know about the finances of Rider? 114 It is a central argument of the Plaintiff that he advised Grant of the nature of his speculative investments from the outset and that he needed protection from the marriage contract for his substantial assets, in the event of both future gains and losses. The Plaintiff argues that Grant failed to explain to him how equalization worked so he did not understand how the FLA operated and the impact of both increasing and de- creasing wealth over the course of the marriage. Rider agreed that he experienced uninterrupted financial success at the time he decided to marry Russell and the prospect of losing money had “never crossed” his mind. He was worth about $77 million when he signed the marriage contract with Russell and he had no intention of making financial disclosure or producing a financial statement. 115 Grant testified that he was aware that Rider was a wealthy man, having sold his travel company for an initial payment of $40 million with the second instalment to be made later. However, he denied that the two of them ever talked in detail about the nature of Rider’s investments. 116 The relationship between Rider and Grant was not the typical solicitor/client relationship. Instead, Rider was negotiating terms with Russell and then advising Grant what he was prepared to do and he expected Grant to draft a marriage contract that accomplished those ends. So, Rider and Russell discussed the quantum of lump sum spousal support depending on the length of the marriage, the purchase of a home for Rus- sell and Rider told Grant to incorporate these terms into the contract. There is no evidence that Grant had any input into the appropriateness of the $3 million figure for lump sum spousal support nor to the term requiring the Plaintiff to buy Russell a home in a particular area of To- ronto. It was Rider who decided on these terms. 117 By my count, there were five drafts of the contract before it was finally signed. While the documentation in terms of dockets, notes and memos to file may be sparse, it is not absent. During the period of time from February 1999 to December 1999, there are letters from Grant to Rider v. Grant D.A. Wilson J. 339

Rider as well as to counsel for Russell and interoffice memos between Grant and other lawyers working with him on the file. These documents deal with various issues arising from the marriage contract and often concern the requested terms that Rider wished to have included. No- where in the documentation is there any mention of Rider’s professed concern about a decrease in his future wealth or about whether the payments set out in the contract were payable in any event. There is nothing that refers to speculative investments, concern about what might happen down the road or an inability to make the lump sum payment. One would have thought that if this was at the forefront of Rider’s mind, as he testified it was when he retained Grant, somewhere in the documentation there would have been a reference to these concerns, but there is not. 118 I find on the evidence that Rider was not prepared to make financial disclosure to Russell or to his counsel for that matter. There is nothing in the evidence that suggests Rider gave Grant detailed information about the nature of his investments such that Grant ought to have discussed with him the use of a downside risk clause. Rider was an extremely successful, self-made man who made his own decisions about his investments. Grant was not retained to provide Rider with investment advice and I do not find it was incumbent on him to tell Rider that his financial success might not continue.

Was there a discussion about the statute and equalization? 119 Without a doubt it is the responsibility of the solicitor to explain how equalization works under the FLA. Rider denies that such a discussion ever took place and further, that he did not understand the concept. 120 Grant testified that while he had no specific recollection of the discussion with Rider, part of his standard speech to clients in 1999 who retained him to draft a marriage contract was to explain how equalization worked under the FLA, that there must be full financial disclosure and that the court had the overriding discretion as to whether or not to enforce the contract. He made a practice of telling his clients that while parties can contract out of the provisions in the FLA governing spousal support and property, at the end of the day the court would determine whether in the circumstances the contract was fair and reasonable and if so, the greater the likelihood was that the agreement would be upheld. This evidence was corroborated by Boulby, who was Grant’s junior and familiar with his practices at the time, having sat in on various meetings with clients. She testified Grant was very experienced in dealing with 340 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

marriage contracts and his practice was to explain to the client how equalization worked, the provisions of the FLA and in particular, how section 5 operated to allow spouses to share financial losses and gains. 121 The concept of equalization of property and what is meant by net family property are basic matters for lawyers practicing family law; and for someone of Grant’s experience, I have no difficulty accepting that the explanation of these matters would be part of his usual, routine speech to a client and as a result, it would not necessarily form the subject of a memo to file or a confirming letter to the client. These are basic concepts and a lawyer drafting a marriage contract would have to ensure that his or her client understood how the statute operated before the terms of the marriage contract could be finalized. It is incomprehensible to me that tasked with drafting a marriage contract which could be subjected to judicial scrutiny, Grant would not have discussed equalization of property or section 5 of the FLA with Rider, as the Plaintiff alleges. I do not accept the evidence of Rider on this point and I prefer the evidence of Grant and Boulby. 122 Another point on which the parties differ is whether or not Grant advised Rider to set aside the $3 million payment under the contract so it would be available if the marriage did not work. Rider denied that Grant ever suggested this to him. Grant testified that after receiving the June 8, 1999 letter from Russell’s counsel (Feldman) expressing concern that the contract did not provide any security for the payment, Grant had a conversation with Rider about the letter and he suggested to Rider that he set the money aside so there was no issue about payment. Grant stated that Rider’s response was basically that how he handled his finances was none of Grant’s business. Tab 116 of exhibit 1 is a docket for a telephone call on June 8 with Rider. 123 In my opinion, when Grant received the letter from Feldman shortly before the wedding day, there were serious concerns raised by Russell’s counsel and Grant would have had to discuss the contents of the letter with Rider. I cannot conceive of how the issue of security for the payment of the lump sum would not have been discussed, along with the fact that the contract was not going to be signed before the day of the wedding. I accept Grant’s evidence that he spoke to Rider and suggested he set aside the $3 million, to allay that particular concern of Russell’s counsel. I find the response of Rider as described by Grant to be consistent with his personality. Rider v. Grant D.A. Wilson J. 341

Did Grant explain the agreement to Rider before it was signed and what was the Plaintiff’s understanding? 124 Grant testified that he explained the marriage contract to Rider and its consequences prior to its execution and that he signed the certificate of ILA after doing so. He was satisfied that Rider understood his obligations under the contract. Rider denies this and asserts that his understanding was that his assets that he brought into the marriage would remain his alone and that his obligation to make the lump sum payment as set out in paragraph 7 would only arise if his wealth increased beyond $40 million. 125 I do not accept the Plaintiff’s evidence on this point for two reasons. First, Rider is and was at the time a sophisticated businessman who was used to negotiating contracts. There is nothing in the contract that suggests his obligation to make a lump sum spousal support payment was only due if his wealth increased beyond $40 million. The wording is clear on its face and given Rider’s denial that Grant explained how the FLA worked, there is no reasonable basis for his stated belief that if his wealth decreased he would not have to make the payment. 126 Second, if his understanding was as professed — that if his net worth declined by the point of separation then no payment was due — one wonders why when he contacted Grant in April 2005 he did not raise that issue with him. He told Grant that he and Russell were separating and that his fortunes had declined, but there was no discussion of what his obligations were under the contract.

Did it fall below the standard of care for Grant not to include a downside clause in the marriage contract? 127 It is remarkable that neither Grant nor any of the experts had ever heard the term “downside protection clause” until they were involved in this case. The expert called by the Plaintiff, Morton, testified that a clause detailing what would occur in the event of a catastrophic change in financial circumstances could have protected Rider from having to make the payments under the contract. He is critical of Grant for failing to explain what would occur in the event of a catastrophic loss of capital, and that protection in the form of a downside risk clause was available for this possibility. 128 Rider retained Grant to create a marriage contract for him to protect his assets in the event of a marriage breakdown. Rider was candid that he did not want to share his considerable wealth with Russell, who he described as bringing no assets to the marriage and had no plans to work. 342 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

He wanted certainty and he was going to determine the amount of lump sum spousal support that he was prepared to pay to Russell as well as any other property that she would obtain if the marriage failed. This was not something he wished Grant to be involved in. 129 The Plaintiff argues that in 1999, Grant was negligent because he never advised him about the availability of a downside clause, which would come into play if his wealth deteriorated significantly over the course of the marriage and would release him from his contractual obligation to make a lump sum payment to Russell and purchase of a house for her. Further, Rider asserts that he would have insisted it be incorporated into the contract as protection and the failure of Grant to do so is a breach of the standard of care. The evidence does not support the Plain- tiff’s position. 130 As the experts conceded, there is nothing in the FLA that prevents a downside clause from being included in a marriage contract, although none of them had ever seen one. Such a protective clause might have been considered, but it would be necessary to make full financial disclosure, which clearly Rider was not prepared to do. Indeed, just before the wedding Russell’s counsel wrote to Grant [exhibit 1, tab 84] expressing concerns about the quantum of the lump sum payment, the lack of security for payment and the absence of financial disclosure. These concerns were raised even though there was no downside clause in the draft contract. Thus, if Rider had insisted on the inclusion of such a clause, I have no doubt Russell’s counsel would have sought an upside clause to be included as well as full financial disclosure. None of the experts suggested that a downside clause would have been included in the marriage contract without further terms or concessions from Rider. It was clear from Rider’s evidence that he would not have agreed to making full financial disclosure or agreeing to allow Russell to participate in the upside of increased wealth during the marriage. 131 Rider was the one negotiating the terms of the contract with Russell. There is no evidence that he requested any variation clause be included in the agreement, despite the fact that he had knowledge of such clauses. The contract is clear on its face; he agreed to make a lump sum payment depending on the length of marriage plus the purchase of a house for Russell in Lawrence Park and half of the furniture in the matrimonial home. 132 The point on which the parties and the experts disagree is the extent to which a solicitor has an obligation to discuss with a sophisticated cli- Rider v. Grant D.A. Wilson J. 343

ent whether his assets might diminish in the future and whether he might require some form of protection from the terms of the contract. Marriage contracts are specific to individuals and to borrow a phrase from counsel for the Plaintiff, they are “tailor made”. Thus, whether a lawyer must have a specific discussion with every client about what might occur in the future in the event their fortunes increase or decrease depends on the facts of the case. Certainly, the provisions of the FLA must be explained and how property and spousal support works pursuant to the legislation. The lawyer has an obligation to consider the objectives of the client and the mandate of the retainer and ensure that any contract addresses these needs. However, I do not accept Morton’s view that in every case, a lawyer must tell a client what would happen down the road if his or her wealth diminished; rather, it depends on the circumstances and on the particular client. 133 Grant admitted that he did not have such a conversation with Rider and his explanation was that given Rider’s history of remarkable financial success as well as his personality, he thought Rider was in a better position than Grant to postulate on what might happen to his assets in the future. I agree with that view. While the Plaintiff argues strenuously that Grant was well aware of the speculative nature of his investments after the sale of Rider Travel, there is no evidence, apart from the Plaintiff’s testimony, to support that argument. By all counts, Rider was not inclined to share information about his financial circumstances, even with his own lawyer. 134 The Plaintiff’s expert, Morton, offered the opinion that it was a breach of the standard of care for a family lawyer in 1999 to have failed to advise a wealthy client that if the market declined and his wealth diminished, he was at risk of having to make payments of significant amounts of money pursuant to the marriage contract. I do not accept this as the appropriate standard of care for Grant when providing advice to Rider. The Plaintiff was very successful in business and obviously was a shrewd negotiator. He had just sold his company for a significant sum of money and he had his own ideas about how he planned to invest the proceeds. He was the best person to predict what his net worth would be following his marriage. He had a track record of great financial success and perhaps he thought that would continue unabated. He agreed he had “the Midas touch”. 135 I do not agree that the standard of care required Grant to make inquir- ies of Rider as to the nature of his investments, or the likelihood of finan- 344 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

cial success in the future. He was not required to advise a shrewd investor like Rider that markets are unpredictable and stock values can depreciate. He had a duty to advise Rider about how the provisions of the FLA worked, how equalization of NFP worked and how best to achieve Rider’s stated objectives through a marriage contract. Rider was not worried about the prospect of a downturn in his fortunes when he retained the Defendant to draft a marriage contract. Rather, he was concerned with protecting himself against equalization which would require him to share his considerable wealth with Russell, something he was not prepared to do. 136 While Morton acknowledged that he relied on the version of events according to Rider, in my view, Morton nonetheless seemed unwilling to concede that even if Grant explained the provisions of the FLA to the Plaintiff, he fell below the standard for not suggesting a downside risk clause be incorporated into the contract. At times, Morton bordered on being an advocate for the Plaintiff. For example, he stated that he thought the evidence of Rider on a certain point was more believable than that of Grant. As an expert retained to opine on standard of care, it was not for Morton to offer an opinion to the court on the credibility of the parties. Family lawyers are not business advisors; and this is particularly so when they are dealing with clients far more experienced than they are in financial affairs. 137 I prefer the evidence of solicitor Dart, who seemed to me to have a broader, more objective view of the case. While he agreed there is nothing in the FLA that prevents a downside clause from being included in a marriage contract, Dart testified that over the course of his 30 plus years of practicing family law he has never seen a downside clause (which is a term for a catastrophic change clause) in any marriage contract. That is because clients are entitled to arrange their support and property agreements as they wish, subject to the overriding discretion of the court to ensure the contract is fair and reasonable. As Dart explained, “it is the obligation of the lawyer to explain the law; not to advise on how the client is to manage his investments.” He makes the point that in order to explain how NFP works, a lawyer necessarily has to discuss with a client what occurs if there is a diminution in wealth over the course of the marriage. He stated that it is up to the client to raise questions or concerns with the solicitor on how the law operates in a specific situation. I accept Dart’s evidence on this point as being more reasonable than that of Morton. Rider v. Grant D.A. Wilson J. 345

138 The defence experts, along with Grant, all agreed that they had never seen a catastrophic change clause used in a marriage contract; rather these sorts of variation clauses are often contained in separation agreements dealing with spousal support. I have found as a fact that Grant explained to Rider how the FLA worked. Rider determined the quantum of the lump sum he was prepared to pay Russell without any input from Grant. As I have indicated, Rider was an experienced negotiator and he wanted to call the shots, as it were. 139 The contract is unambiguous and paragraph 7 is clear about the terms of when the payment was due. Rider testified that he did not understand that the contract required him to make the lump sum payment to Russell in the event of a marriage breakdown regardless of his financial circumstances. I do not accept that evidence. It is inconceivable to me that a businessman as sophisticated as Rider would not understand the straightforward terms of the contract, specifically paragraph 7. There is nothing in the contract which can be read as supporting his professed understanding that the payments set out in the contract were somehow conditional upon his wealth increasing during the marriage.

Did Grant breach the standard of care? 140 Counsel for the Plaintiff asserts that Grant breached the standard of care of a reasonably prudent solicitor in the circumstances because he failed to create a “tailor made” marriage contract which afforded protection to Rider. I reject this argument. I find that Rider retained Grant with the objective of preserving his considerable wealth in 1999 so that he would not have to share it with Russell in the event of a marriage breakdown. He also wanted to nail down what his obligations were so that he had certainty as to what he would have to pay and avoid expensive, protracted litigation. 141 Counsel for the Plaintiff suggests that the docketed time of Grant to- taling approximately six hours means that he could not have properly completed a customized marriage contract. I disagree. Rider was the one doing the majority of the negotiations and Grant was a very senior family law practitioner, so he was experienced in the drafting of marriage contracts and as well, he had other solicitors assisting him. Several drafts of the contract were completed and reviewed by Rider. In my opinion, the marriage contract met the Plaintiff’s objectives: it protected his assets from a claim by Russell; it defined the payment amount thus providing 346 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

certainty in the future and it settled the issues of property and spousal support. 142 Rider knew the lump sum figure that he and Russell had agreed on was payable in the event of marital breakdown regardless of his financial circumstances; Grant advised Rider to set the $3 million aside so it was available if necessary, which was sound advice. For reasons I detailed earlier, I do not find that the applicable standard of care required Grant to advise Rider that he could include a downside risk clause. As a result, I find that Grant’s provision of legal services to Rider met the standard of care of a reasonably competent solicitor in the circumstances.

Causation 143 Although I have found there was no breach of the standard of care and that Grant was not negligent, I will deal with the issue of causation, in the event that I am wrong on the liability issue. In order to do so, I will assume that Grant was negligent in failing to advise Rider of the availability of a downside protection clause that could have been included in the marriage contract. 144 The Parties agree that to establish causation, the Plaintiff must demonstrate that “but for” the negligence of Grant, on a balance of probabilities, he would have proceeded in a fashion that would have avoided the damages which he sustained as a result of the Defendant’s negligence.8 145 Specifically, in an action for solicitor’s negligence, the Plaintiff must demonstrate that if properly advised, he or she would have acted in a different manner and would have avoided the damages suffered.9 146 The Plaintiff argues that but for the negligence of Grant, Rider would have negotiated a downside protection clause in the contract, and there is a real chance Russell would have agreed with the provision. It is submitted this was a lost opportunity. Counsel for the Plaintiff also submits that as a result of having to make the payment to Russell, he was unable to participate in the financing requests for TimePlay in 2010 and as a result he was unable to maintain his position as a majority shareholder.

8 Clements (Litigation Guardian of) v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181 (S.C.C.). 9 Marcus v. Cochrane, 2012 ONSC 146, 2012 CarswellOnt 1472 (Ont. S.C.J.). Rider v. Grant D.A. Wilson J. 347

147 The Defendant submits that what the Plaintiff is alleging is the opportunity to negotiate with Russell the inclusion of a downside risk clause and this is what is known as the “lost chance doctrine.” To succeed, the Plaintiff must establish four criteria:10 but for the negligence of Grant, Rider had a chance to obtain a benefit or avoid a loss; that the lost chance was real and significant, not just mere speculation; that whether Rider would have avoided the loss or made the gain depended on someone other than the Plaintiff; and that the lost chance had some practical value. 148 I agree with and adopt the analysis of Doherty J.A. in Folland. He states, “...lost chance is well recognized as a basis for assessing damages in contract. In contract, proof of damage is not part of the liability inquiry. If a defendant breaches his contract with the plaintiff and as a result a plaintiff loses the opportunity to gain a benefit or avoid harm, that lost opportunity may be compensable.”11 He goes on to set out the four criteria which I have noted above, which must be satisfied. 149 In my view, the Plaintiff has established the first criterion. I am satisfied on the evidence on a balance of probabilities that but for Grant’s negligent conduct in the advice that he provided, Rider had a chance to obtain a benefit, specifically to include a downside protection clause in the contract. 150 I turn to the second criterion, that the lost chance was sufficiently real to rise above mere speculation. As Justice Doherty noted, “The second criterion is admittedly somewhat nebulous. There is no bright line between a real chance and a speculative chance.”12 The Plaintiff argues that Rider would have insisted on downside protection and I accept that. However, I do not find on the evidence that Russell would have accepted the clause. While counsel for the Plaintiff submits that the evidence demonstrates that Russell was reasonable and would have understood Rider’s need to protect himself and urges me to accept Rider’s evidence on this point, I disagree. There was no evidence called at trial to demonstrate that Russell was “reasonable” during the negotiation of the marriage contract and that she would have readily agreed to include a downside protection clause. The Plaintiff did not call Russell as a witness.

10 Folland v. Reardon (2005), 74 O.R. (3d) 688 (Ont. C.A.). 11 Folland at para. 73. 12 Folland at para. 74. 348 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

151 On the contrary, just prior to the marriage, Russell’s counsel balked at the draft agreement that had been sent to her for review. She sent a letter to Grant advising that Russell was not going to sign the contract; that she was concerned about the quantum of the lump sum payment, the lack of security for the payment and the failure of Rider to make financial disclosure. These concerns were raised in the absence of a request for a downside protection clause. It is clear that Russell was not going to sign a marriage contract with a downside protection clause because she was “reasonable”. 152 The Plaintiff has failed to establish what sort of downside protection clause would have been acceptable to Russell — was it a catastrophic change clause and if so, what was the definition of what constituted a catastrophic change? And in those circumstances, what payment would Rider have been obliged to make? Secondly, and more importantly in my view, the evidence from all of the experts, which I accept, is that had such a clause been suggested for inclusion in the contract, Russell’s counsel would have demanded other changes to the terms and insisted on full financial disclosure, a demand that Rider was clear he would never have agreed to. Rider has failed to establish that the chance was anything more than mere speculation, in my opinion. 153 I pause to note that while counsel for the Plaintiff suggested that an adverse inference be drawn against the defence for their failure to call Russell as a witness, it was the Plaintiff who had the burden of proof to establish what terms Russell would have agreed to if Rider had insisted on a downside protection clause. Their failure to do so is surprising and left the court wondering about what would have been acceptable to her. At the end of the day, the court was left to guess about what would have happened, which clearly is not acceptable when a Plaintiff is seeking damages. 154 To complete the analysis, I agree that the Plaintiff meets the third criterion for proving lost chance. However, he fails on the fourth criterion as he has failed to persuade me on a balance of probabilities that the lost chance actually had some real value. To put it another way, I am not satisfied that had a different contract been signed which included a downside protection clause or even if no contract had been executed, I am not persuaded that Rider would have ended up paying Russell a lesser amount than he did. I will address this point in more detail in the damages section of these Reasons. Rider v. Grant D.A. Wilson J. 349

155 A downside protection clause is simply a variation clause and this enables a party to ask the court to release him or her from monetary obligations pursuant to an agreement because there has been a change in circumstances. The requesting party must still convince a court that there has been a drastic or catastrophic change in his or her financial circumstances such that it would be unfair to hold him or her to the agreement. 156 In my view, the lost chance here is mere speculation and further, the evidence satisfies me that the lost chance has no real value because the same marriage contract would have been signed in any event. 157 On the evidence, I do not find that the Plaintiff would have been better off had he had a downside protection clause in the contract. There are several reasons for my conclusion. First, it is far from clear that Rider would have been successful in persuading a court that he had suffered a catastrophic change in circumstances. As pointed out by the solicitor for the Defendant, on the summary judgment motion, Justice Belobaba found, “I do not agree that a reduction in the husband’s net worth from $40 to $15 million is so “catastrophic” that the husband’s agreement to pay a $3 million lump sum... is so “shocking to the conscience” that it should be set aside as unconscionable” particularly when he has $3.5 million sitting in a trust account from the sale proceeds of the matrimonial home.” 158 Furthermore, Russell was a stay at home mother who had not worked for years prior to the marriage. At the end of the 10 year marriage, she was in her late 40s with no assets. The Plaintiff was still worth between $15 and $20 million at the time of separation. In my opinion, a court looking at a marriage contract with a downside protection clause and a low amount of spousal support or none at all would not find that agreement fair and reasonable in the circumstances. Thus, Rider’s goals of certainty and no litigation would not have come to fruition and in all likelihood, he would have ended up paying Russell as much, and likely more, than what he did in fact pay. I am mindful of the fact that when the marriage contract was executed, Rider’s net worth was in the $75 million range, not $40 million, and financial disclosure was never made. 159 Thus, Rider has failed to establish causation on a balance of probabilities.

Damages 160 In the event that I am incorrect on the issues of standard of care and causation, I will assess the damages on the evidence that I heard. 350 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

161 The Plaintiff claims damages arising from the amounts he paid under the marriage contract, $5,552,210 less monthly support payments of $5,800 for 7.5 years in accordance with the evidence of Morton. Further damages are claimed for the alleged inability of Rider to meet the TimePlay financing calls. It is submitted by counsel that these damages range from $13.65 million to $40.95 million. In the alternative, it is suggested that the quantification of the losses of TimePlay ought to be referred to an independent valuator for an assessment. Finally, the sums paid to Harold Niman to represent him in the litigation with Russell over the marriage contract are claimed at $154,653.86. 162 The defence argues that the damages of the Plaintiff are limited to the $3.5 million payment to Russell, which is adjusted for inflation. It is submitted that the rest of the payment was for the purchase of a house and child support payments, which a downside protection clause would not have applied to. It is submitted that even if a downside clause had been included in the contract, or if there was no contract signed between Rider and Russell, she would have been entitled to significant spousal support and the quantum and duration are pure speculation. 163 With respect to the claim for the losses arising from TimePlay, it is submitted that this claim fails for foreseeability and it is too remote. In short, the Plaintiff has not proven his damages.

Damages arising from payments to Russell 164 I will deal first with the claim for damages from the lump sum payment to Russell of $3.5 million. It is trite law to say that a Plaintiff has the burden of proving his damages to the satisfaction of the court. In this case, the Plaintiff says that had he been told of the possibility of including a downside protection clause in his marriage contract, he would have done so and Russell would have agreed. Assuming this is correct, what are the damages that arise from the negligence of Grant? 165 In my view, it is impossible to put a number on the damages for several reasons: • If a downside clause were included in the contract, what would it be? The experts all agreed that a downside protection clause is simply a variation clause which could be triggered in a number of ways. It might be a catastrophic change in financial circumstances, as Rider suggested. What is the definition of catastrophic change in circumstances for a man who was worth $77 million at the time he married Russell? Rider v. Grant D.A. Wilson J. 351

• If a downside clause were included in the contract and Rider brought a motion for relief from his payment obligations, what are the chances that a judge would accept his argument? And even if he was successful in persuading a court that he ought not to be held to the payment set out in the contract, what payment would a court find he ought to make? I have no doubt that on the facts of the Rider-Russell marriage, Russell would be found to be entitled to spousal support. It is impossible to determine what amount Rider would have been ordered to pay and over what time period, but certainly it would have been a significant figure. 166 Rider is an individual with complex financial interests, the details of which were not provided during the trial. Both parties had their respective experts offer opinions on the likely quantum and duration of spousal support that Rider would have been ordered to pay. The Plaintiff expert, Morton, agreed Russell would be entitled to support and said it would be based on his line 150 income at the date of separation of $97,000. Thus, he testified that he was of the view Rider would have to pay spousal support of between $1,044 and $1,392 per month for 5 to 10 years. On a lump sum basis, this works out to $85,727. 167 The defence expert, Dart, disagreed with Morton’s analysis. He testified that the determination of Rider’s income at the date of separation was not an easy task and would have required much more information than had been provided but he believed the court would impute income to him. Even assuming that Rider was worth $19,600,000 in 2010 as he acknowledged, a modest rate of return of 5% might be imputed by the court which would peg his income at $980,000. On this basis, using the low end of the range, Rider would pay $25,812 per month in spousal support for perhaps 10 years. The lump sum of this amount is $1,650,000. 168 Dart also calculated the lump sum spousal support using an income of $3.5 million, given that Rider’s assets grew by this amount in 2010. In this scenario, Rider would have had to pay approximately $100,000 per month in spousal support. The lump sum equivalent for 7.5 years is approximately $5 million. Thus he concluded that even if no marriage contract and no equalization payment, Rider would have had to pay a similar amount in spousal support to what he paid under the contract. 169 I do not accept the calculations put forth by Morton because I do not believe a court would accept that Rider’s income for support purposes was $97,000. That is unrealistic based on his investments and his lifes- 352 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

tyle. One of the factors a court considers when determining the appropriate amount of spousal support is the lifestyle to which the parties were accustomed during the marriage: see Moge v. Moge.13 There can be no doubt that the standard of living Russell was used to during the marriage was very high: they lived in a 14,000 square foot home valued at $13 million; they took regular, lavish vacations; they had a gardener, a house- keeper, and a nanny for the children; they had a sailboat worth $1 million dollars and a wine collection valued at $200,000. Rider did not make financial disclosure and at trial, there was no expert opinion to assist the court in determining what his income would be for support purposes. In my opinion, a court would not accept the argument that Rider’s assets at the time of separation were largely illiquid and therefore incapable of generating income. 170 I prefer the expert opinions of Phillips and Dart on the issue of what spousal support the Plaintiff would have had to pay had there been no marriage contract. Both of them agreed that Rider faced significant spousal support payments given that Russell had not worked since 1991, had stayed home to look after their children, was used to a high lifestyle and had little income earning potential. These facts combined with there being no equalization payment forthcoming suggest a court would be generous in awarding spousal support. I am not persuaded there would have been any significant difference between the amounts Rider paid pursuant to the marriage contract and what he would have had to pay assuming there was downside protection or alternatively, no marriage contract. I draw this conclusion based on the evidence at trial; the documentation concerning Rider’s wealth at the time of separation was less than satisfactory and gave rise to questions which were not answered from the evidence called for the Plaintiff’s case. Thus, Rider’s true financial situation at that time was not clearly made out and as a result, I am forced to make assumptions, which is far from optimal. The court cannot be left in the position of having to essentially guess at what would have happened. 171 It seems to me that the speculation surrounding the damages was unnecessary. Rider could have testified about how he would have defined a catastrophic change in his financial circumstances in 1999, had he insisted on such a provision being included in the marriage contract. He could have summoned Russell as a witness to testify about whether or

13 Moge v. Moge, [1992] 3 S.C.R. 813 (S.C.C.). Rider v. Grant D.A. Wilson J. 353

not such a term would have been agreeable to her; for Rider to simply say that he knows she would have agreed to such a term because she was gaining so much by marrying him is not persuasive to me and falls far short of meeting the burden on the Plaintiff to prove his damages. In addition, it was open to Rider to call expert evidence of his financial circumstances such that the court could have drawn conclusions rooted in the evidence. He failed to do this. 172 It remains the Plaintiff’s onus to prove his damages. As the Court of Appeal has pointed out, “...it is a well established principle that where damages in a particular case are by their inherent nature difficult to assess, the court must do the best it can in the circumstances. That is not to say, however, that a litigant is relieved of his or her duty to prove the facts upon which the damages are estimated...14

Damages arising from fees paid to Niman 173 The Plaintiff claims $154,653.86 for fees paid to Niman in the litigation involving Russell. There is a one paragraph reference in the written argument to this head of damage. Rider said nothing about the fees paid to Niman during his evidence, apart from the fact that he had to retain him when Russell moved for payment under the contract. The joint book of documents contains but one document from Niman. At tab 164 there is a billing summary dated October 2010 in the sum of $34,928.61. 174 I do not have any information as to how the fees paid to Niman were calculated; perhaps some of Niman’s time dealt with matters pertaining to custody and access to the children of the marriage, which clearly were not related to the work done by Grant. The defence takes the position that Rider led no evidence on this claim and cannot claim damages for it. I agree.

Damages from TimePlay 175 In a nutshell, Rider claims he did not have sufficient cash to invest in TimePlay when calls were made for funding and as a result, he lost his position as majority shareholder. There was no expert evidence called on this alleged loss. 176 I reject this claim for 2 reasons: it was not foreseeable and it was not proven. Grant was not aware of the particulars of the Plaintiff’s invest-

14 Martin v. Goldfarb [1998 CarswellOnt 3319 (Ont. C.A.)] 1998 CanLII 4150 354 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

ments or financial affairs. While he knew he was a wealthy man, Rider did not share with Grant the nature of his investments. Specifically, I do not accept that Rider told Grant about his interests in TimePlay. That would contradict Rider’s demonstrated unwillingness to share the particulars of his financial affairs with his wife, and his lawyers, to name but the obvious people. It would also be inconsistent with his own evidence when he confirmed that at the time he was dealing with Grant, the thought of having a decline in the stock market or in his asset base “never crossed his mind”, to use Rider’s words. He never entertained the idea that he would have any difficulty coming up with money to invest. He never gave Grant a financial statement and he conceded in cross examination that he never told Grant the amounts of money he was investing in various startup companies or the level of risk associated with them. 177 The evidence of Rider’s accountant, Price, confirmed that Rider’s net worth decreased from $77 million in 1998 to $18 million in 2010. Price acknowledged that even before the separation with Russell — in 2006 and 2007 — Rider did not take up the offered shares in TimePlay and his percentage of ownership dropped. At the same time, however, for reasons best known to Rider, he invested approximately $900,000 in Zenn Motorcar and $829,000 in Blackberry. Rider made his decisions about where and how to invest his money; he chose not to invest in TimePlay when requested, as he was entitled to do. 178 In the documents contained in the Transactions Analysis briefs it is clear that the Plaintiff was active in trading in 2010 and 2011, the years he says he was cash strapped and unable to participate in the funding requests for TimePlay. He was trading stocks in other companies and investing large amounts of money. His accountant Price acknowledged that in the years prior to his separation — specifically, 2006, 2007 and 2009 — Rider did not take up the offered shares at TimePlay and his percentage dropped. 179 While I do not disagree the market crash of 2008 had serious negative repercussions for Rider, he was not left without money to invest, as he suggested in his evidence. He simply made decisions about where he was investing his money and he chose not to invest it in TimePlay for whatever reason. I do not accept the evidence of Rider that he was unable to participate in the growth of Timeplay because he did not have cash available to purchase stocks. He may have had his own reasons for not participating in the growth requests for TimePlay, but I do not find that Rider v. Grant D.A. Wilson J. 355

he was unable to do so as a result of having to pay Russell pursuant to the marriage contract. 180 Rider was the President and CEO of TimePlay. In that capacity, surely he would have known what the plan was for funding in the future. He admitted he had no concerns about his ability to invest in TimePlay in 1999. If he did not foresee such a loss, it is difficult to understand how Grant ought to have been able to foresee such an outcome. 181 The second reason I reject this claim is that I am not satisfied that Rider did not have the funds to invest in TimePlay as a result of paying Russell under the contract. Rider was taken through his stock transactions during his cross examination. The Plaintiff testified that he created TimePlay in 2002 and held 53% of the stock. He alleges that from 2008 through 2010 when he was asked to put money into the company, he did not have the $2.81 million available so he lost his majority position — see tab 143 of Exhibit 1. 182 At the same time, however, Rider swore a financial statement dated March 18, 2010 for the litigation with Russell in which he indicated his net worth was $18,604,817. Yet he said that he could not raise the necessary $2.81 million to invest in TimePlay because his money was invested in speculative stocks that could not generate money. 183 When Rider was asked during his evidence what his losses were arising from TimePlay, he said that he did not know. Being a sophisticated businessman and an officer of that company, if Rider could not quantify the loss, for the Court to attempt to do so would be nothing more than guesswork without an evidentiary foundation. Perhaps an expert would have been able to assist the court on the quantification of the lost stock purchases. At best, the evidence concerning the losses from TimePlay stocks was speculative.

Conclusion 184 As I have found no breach in the standard of care in Grant’s provision of legal services to Rider in 1999, the claim is dismissed. 185 I would like to thank counsel for their excellent advocacy on behalf of their clients and for their unfailing courtesy to the Court. If an agreement cannot be reached on the issue of costs, I may be contacted. Action dismissed. 356 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

[Indexed as: Zwack v. Butler] Garry Walter Zwack, Claimant and Sheila Marie Butler aka Sheila Marie Zwack, Respondent British Columbia Supreme Court Docket: Kamloops 35982 2015 BCSC 1609 H.C. Hyslop J. Heard: July 20, 2015 Judgment: September 8, 2015 Family law –––– Support — Child support under federal and provincial guidelines — Application of guidelines — General principles –––– Parties had two children, S and C, who reached age of majority — Children graduated high school and continued to reside with mother — S gave birth to child in her last year of high school, was not employed since leaving high school, and planned to attend technology centre to take course in graphic and digital design — Father found out about grandchild through social media one month before birth — Children and father had little, meaningful contact with each other — C worked for mother and placed earning in account earmarked for education — C child had goal of attending college for aircraft maintenance but had not completed requisite courses for doing so — Pursuant to 2011 order, father was to pay support in amount of $1,100 in respect of children — Father sought to end his obligation to pay child support retroactively to birthday of when children reached age of majority — Father was to pay $900 per month directly to C for 15 months conditional on her acceptance to college in aircraft maintenance course — Father’s income was now $74,600 — Mother’s income was $67,851.01 — S had to care for her child and was not child of marriage as she was not pursuing post-secondary education and had no immediate plans for future education — As such, father was no longer required to pay child support for her — If C entered college she was still child of marriage and father was obliged to contribute to her support — Mother and father were to contribute to C’s post- secondary education. Cases considered by H.C. Hyslop J.: Beissner v. Matheusik (2015), 2015 BCCA 308, 2015 CarswellBC 1848 (B.C. C.A.) — considered Budden v. Budden (2001), 2001 BCSC 236, 2001 CarswellBC 874, 16 R.F.L. (5th) 256, [2001] B.C.T.C. 236 (B.C. S.C.) — considered Farden v. Farden (1993), 48 R.F.L. (3d) 60, 1993 CarswellBC 619, [1993] B.C.J. No. 1315 (B.C. Master) — followed Zwack v. Butler H.C. Hyslop J. 357

Nordeen v. Nordeen (2013), 2013 BCCA 178, 2013 CarswellBC 1018, 43 B.C.L.R. (5th) 330, 29 R.F.L. (7th) 288, 336 B.C.A.C. 301, 574 W.A.C. 301 (B.C. C.A.) — referred to Vetrici v. Vetrici (2015), 2015 BCCA 146, 2015 CarswellBC 852, 57 R.F.L. (7th) 18, 370 B.C.A.C. 164, 635 W.A.C. 164 (B.C. C.A.) — considered Z. (G.W.) v. Z. (S.M.) (2010), 2010 BCSC 92, 2010 CarswellBC 141 (B.C. S.C.) — considered Zwack v. Zwack (2004), 2004 BCSC 1494, 2004 CarswellBC 2680, [2004] B.C.J. No. 2387 (B.C. S.C.) — referred to Statutes considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Generally — referred to s. 2(1) “child of the marriage” — considered s. 2(1) “child of the marriage” (b) — considered Regulations considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Federal Child Support Guidelines, SOR/97-175 Generally — referred to s. 1(a) — considered s. 3(1) — considered s. 3(1)(a) — considered s. 3(2) — considered s. 3(2)(a) — considered s. 7 — considered s. 7(1)(e) — considered

APPLICATION by father to retroactively terminate child support obligation.

Garry Walter Zwack, for himself Sheila Marie Butler, for herself

H.C. Hyslop J.: Introduction 1 There are two applications brought before the court. Both applications relate to the ongoing support of the claimant father and respondent mother’s twin daughters, Courtney and Sydney, born February 26, 1996. The girls reached their age of majority at their last birthday. 2 In his application, the claimant asks that his obligation to pay child support end retroactively on February 26, 2015. 3 The respondent opposes the termination of child support. 358 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

4 In her application, the respondent seeks: 1. An Order that Garry Walter Zwack pay for the children’s post- secondary education and provide an accounting of where the money went. 2. An Order that all funds in accounts belonging to the children of the marriage be placed in trust with Courtney and Sydney Zwack, and an accounting of any of these funds that have been disposed of in the children’s absence. These funds include all deposits of monies earned during the animal husbandry projects since the girls entered 4H activities at the ages of 7 years old, up to and including the last 4H event attended prior to relocating to Wil- liams Lake in 2010, all birthday monies presented as gifts, all Christmas monies presented as gifts, for the entire duration spent in Kamloops. 3. Request documentation that demonstrates exactly what exists and an accounting of any funds disposed of in regards to funds set aside for the children’s education including, but not limited to RESP’s and receipts for Legal fees incurred at the time. Request retroactive payment of all funds to the children from 2010 to present in the form of RESP’s. 4. Request to enter the residence at 1785 Gardiner Rd, in Kamloops BC to pick up all personal, meaningful belongings remaining at the residence. 5. Half of the cost of Graduation dresses and Graduation fees and dental fees owed to the respondent. 5 On March 9, 2011, Mr. Justice Powers ordered, by consent, that the claimant pay to the respondent for the support of Courtney and Sydney, $1,100.00 per month, commencing October 1, 2010. The parties were to exchange their income tax returns and adjust their child support payments annually, in accordance with the Federal Child Support Guide- lines (the “Guidelines”). There is no evidence before me that the child support was ever adjusted. At the time Powers J. made the order, he found the claimant’s income for child support purposes to be $73,500.00. 6 The following issues arise: 1. Are Courtney and Sydney still children of the marriage as defined by the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp) [DA]? 2. Is the claimant obliged to pay one-half of the children’s graduation expenses and a dental bill incurred for Courtney? Zwack v. Butler H.C. Hyslop J. 359

3. Is each child entitled to receive the proceeds of the registered educational savings plan (“RESP”) of which each child was a beneficiary? 4. Do bank accounts exist in the names of the children to which money from 4-H projects and gifts were deposited? 5. Is the claimant entitled to enter the respondent’s residence to pick up all personal, meaningful belongings remaining there? 6. Is the claimant obliged to provide to the respondent copies of legal accounts incurred in 2010?

A History of Legal Proceedings 7 In order to understand the claimant’s and the respondent’s positions, as well as the positions taken by their children, an outline of the past legal history of this family law proceeding is necessary. 8 The claimant and respondent separated when their daughters were less than a year old. When the children were age 7 and in grade 2, they started living with the claimant and his wife, Natalie Vivian, in Kamloops. 9 At that time, the children lived with the respondent at Tatla Lake in a home that she owned. 10 The change in the children’s residence came about as a result of a trial in which Powers J. concluded that it was in the best interests of the children that they reside with their father: Zwack v. Zwack, 2004 BCSC 1494 (B.C. S.C.). Powers J. awarded primary residence of the children to their father and ordered joint custody and guardianship (“Master Joyce Order”) to the claimant and to the respondent. 11 In 2009, the respondent filed an application seeking that the primary residence of the children be with her in Williams Lake. Grist J., who heard the application, Z. (G.W.) v. Z. (S.M.), 2010 BCSC 92 (B.C. S.C.), wrote: [41] I am of the view that there is really no material change which satisfies the threshold test, however, if the case should be considered beyond this stage, it is important to note that the care and support they receive in their father’s home has been beneficial, and the views of the children would support them remaining there. [42] In the ultimate, I am of the view that Powers J.’s decision remains determinative of the girls remaining in their father’s home and 360 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

there is no material change in circumstances to either prompt a reas- sessment or ultimately dictate a change to their mother’s home. 12 In September of 2010, after visiting with the respondent, the children were scheduled to return to the claimant. They were not returned to the claimant. Legal action was taken by the claimant for the return of the children. They were returned. 13 After discussions with the children, the claimant and his wife reluc- tantly accepted that the children wished to live with their mother. At that time, the children were age 14 and about to enter grade 9. The children have lived with their mother since then. 14 While the children lived with the claimant and his wife, the respondent was ordered to pay child support to the claimant. She did not pay child support. The support became significantly in arrears. It eventually was paid, but only as a result of a set-off against the child support that the claimant was to pay the respondent after September 2010.

Findings of Fact 15 The children graduated from high school in June of 2014. They continue to reside with the respondent. 16 Both Sydney and Courtney have, since moving from their father’s residence in September of 2010, continuously lived with their mother, and that will continue unless Courtney goes to college. 17 The respondent lives in a rental home at 150 Mile House, British Co- lumbia. However, she stated that the residence has been sold and she can no longer afford the rent. She and the children, together with Sydney’s baby, intend on moving back to her Tatla Lake residence. 18 In January 2014 of Sydney’s grade 12 year, Sydney gave birth to a baby boy. Sydney and the baby both reside with the respondent. The claimant was not notified of the pregnancy and learned of it about a month prior to the child’s birth through social media. The child’s father is a high school student. 19 Since September of 2010, the children and the claimant have had little, meaningful contact with each other. 20 The children have not been employed since graduating from high school. Zwack v. Butler H.C. Hyslop J. 361

Sydney 21 Sydney has not been employed since leaving high school. Sydney is not available for employment as she must provide care for her son who is approximately 18 months old. Sydney has no plans for continued education, except a vague idea that she would like to attend Landmark Tech- nology Centre, located in Kelowna to take a course in graphic and digital design in the fall of 2016. 22 Sydney has provided internet information about the course. The tuition is $20,590.00. There is no evidence before me that she has made any other inquires as to the cost of accommodation, food, travel, or the cost of childcare for her baby. 23 Neither Sydney nor the respondent provide information as to whether Sydney must obtain certain educational standards for entry or have experience in the field for entry into the course. I conclude that Sydney cannot work or pursue education at this time as she must care for her child. The earliest she would go to college would be in the fall of 2016.

Courtney 24 Since graduation, Courtney has not been employed, except by her mother. Courtney has placed these earnings in an account earmarked for her education, spending money for clothing and personal effects. The amount in the account is unknown. 25 Courtney’s goal is to enrol in Northern Lights College located in Dawson Creek and take a 15-month aircraft maintenance course, starting in September of 2015. Attached to the respondent’s affidavit sworn July 16, 2015, are purported applications dated January 2015 for Courtney’s enrolment in this course. The application has not been sent to the college as Courtney is required to complete certain prerequisite courses. 26 In grade 12, Courtney only took what I would describe as two core subjects, that is, Foundations of Math 12 and English 12. 27 In order to gain entrance into Northern Lights College, in the course that she wishes take, Courtney must attain 67% grade in English and Physics. She did not attain those marks in high school. The transcripts of her grades throughout high school do not show her enrolled or completing any Physics courses. 28 Courtney enrolled in the Graduation Roots Other Ways (GROW) through the School District No. 27 in order to take English and Physics. There is no evidence before me as to when she was enrolled. There is no 362 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

evidence before me as to whether she completed the English course and attained the grade level required. At the time of hearing this application, Courtney was still working on the Physics course. 29 The cost of the tuition at Northern Lights College is difficult to dis- cern, but it appears it is at least $20,000.00. There is no evidence before me as to the cost of board and lodging in Dawson Creek. It is unknown whether she will live in an apartment, in a campus residence, or in a room and board arrangement. In addition, there is the cost of food and travel, which has not been disclosed or even estimated. Courtney does not state in her affidavit, nor does the respondent, whether Courtney has looked into student loans, grants, or loans as a result of her Aboriginal heritage. At best, Courtney has available to her between $500.00 and $750.00 bursary provided by the government.

Other Findings of Fact 30 I find for child support purposes that the claimant earns $74,600.00. I have ignored his farm losses, and I have deducted his union dues. The respondent’s income for child support purposes is $67,851.01. This does not include her rental income of $9,863.10 as I have assumed that this rent is for the Tatla Lake residence, which she will be living in shortly. 31 I find that the claimant and respondent cannot move beyond the events of September of 2010, when the respondent refused to return the children to the claimant, which took court orders to have the children returned to their father in Kamloops where they had lived for six years. In the end, the children decided to return to live with their mother. All of the affidavits, including those of the children, re-hash those events. It is obvious that the children have been heavily influenced by their mother’s version of events up to and including the events when the children lived with their father in 2010. 32 I find the claimant has invited his children to visit him. They have not visited him. The children have come to Kamloops for horse events and they made no specific arrangements to visit with their father. 33 During the time that the children lived with the claimant, there were no bank accounts in the name of the children or held in trust for them. Zwack v. Butler H.C. Hyslop J. 363

Discussion The Children’s Bank Accounts 34 The children received modest amounts from their 4-H projects. Their expenses toward their projects do not reflect all costs. The 4-H documents disclose only the initial cost of the animal, the feed, health costs, and reflects the number of pounds the animal gained. It does not show the cost of transportation, equipment and other costs to participate in 4- H. No law was cited by the respondent holding that money earned by a child as a result of an activity must be kept separate and held for the child in the future. The claimant’s evidence is that most of the money received by the children for their 4-H projects was kept by the children for spending or spending money on trips. The claim for the money received by the children for their 4-H activities and gifts is dismissed.

Entry to the Claimant’s Residence 35 The respondent seeks to enter the claimant’s residence to pick personal and meaningful belongings remaining at the residence. I have assumed that these belongings are the children’s. There is no evidence that either of the children or the respondent, over the past five years, have sought such items. This part of the respondent’s application is dismissed.

Registered Educational Savings Plan (“RESP”) 36 Over the years, Ms. Vivian and her parents contributed to RESPs of which Sydney and Courtney were each a beneficiary. Ms. Vivian’s parents contributed to plans for their other grandchildren. 37 Attached to Sydney’s affidavit is the RESP of which Sydney is the beneficiary. It discloses contributions and government contributions. Sydney, in her affidavit, states that when she and her sister moved in 2010 to Williams Lake to live with their mother in September 2010, all contributions stopped. This is not surprising, given that they had turned their backs on Ms. Vivian and her parents, and had no ongoing relationship with them. 38 Each child was a beneficiary of an RESP. It was not disclosed to me as to who the subscriber of each RESP was. I assume that it was likely Ms. Vivian and the claimant, or either one of them separately. 39 In any event, the RESPs were cashed in and used for legal costs when the respondent failed to return the children to the claimant in September of 2010. 364 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

40 In Vetrici v. Vetrici, 2015 BCCA 146 (B.C. C.A.), the appeal court had an opportunity to deal with ownership of a RESP. While living together, Mr. and Mrs. Vetrici opened up an RESP account at a financial institution. Their children were the beneficiaries of the RESP. After their separation, the parties entered into a property settlement. It was agreed that Mrs. Vetrici would receive the RESP. 41 Mrs. Vetrici eventually closed the RESP account, using the net proceeds to support herself. Mr. Vetrici objected to her closing the account and sought that Mrs. Vetrici repay the amount she received, or re-establish the RESP. 42 In Vetrici, Mr. Justice Frankel described how RESPs operate. He stated the following: [34] The RESP is a type of investment registered pursuant to s. 146.1 of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.). A RESP is a savings / investment vehicle for anticipated post-secondary education costs that provides two benefits: (a) income tax deferral on investment income (s. 146.1(6)); and (b) matching grants from the federal and some provincial governments. Practically speaking, a RESP is an agreement between a “subscriber” (typically, a parent or grandparent) and the “promoter” (i.e., provider) of an investment product (often a chartered bank) to invest the subscriber’s contributions consistent with s. 146.1. However, unlike contributions to a Registered Retirement Savings Plan (“RRSP”), the contributions to a RESP are made from tax-paid funds. [35] When a RESP is opened, the subscriber names a beneficiary (typically, a child or grandchild) (s. 146.1(1)). If in the future the beneficiary enrolls in an eligible post-secondary institution, then the subscriber can request the promoter to make educational assistance payments to the beneficiary or to the subscriber for the beneficiary’s use (s. 146.1(2)(g.1)). The educational assistance payments are comprised of the investment income earned on the contributions and any grants (s. 146.1(1)). The subscriber also can request that the promoter pay out contributions to the beneficiary. The beneficiary claims as his or her income funds attributable to the grants and investment income, which were subject to the tax deferral, but not the proportion drawn from the contributions (s. 146.1(7)). [36] As described by Mr. Justice Hall in Luedke v. Luedke 2004 BCCA 327at para. 25, 44 B.C.L.R. (4th) 35, a RESP is a way of “making provisions for an anticipated expense in the future”. How- ever, contributions to a RESP and any accumulated investment income remain the property of the subscriber until the subscriber di- Zwack v. Butler H.C. Hyslop J. 365

rects payment to the beneficiary. If for some reason the beneficiary does not attend an eligible post-secondary institution, the Income Tax Act provides several mechanisms to address the funds held in the RESP. In some circumstances, the funds may be transferred to the subscriber’s RRSP, less any grants, or the beneficiary’s Registered Disability Savings Plan, if he or she is eligible for one (ss. 146.1(1.1) and (1.2)). If one of those options is not available, then grant funds are returned to the government and the remaining funds are returned to the subscriber. That portion of the remaining funds attributable to investment income is taxable in the hands of the subscriber (s. 146.1(7.1)). Mr. Vetrici’s claim relating to the RESP was rejected. 43 These RESPs, of which Courtney and Sydney were each beneficiaries, belonged to the subscriber. There is no specific evidence as to who the subscriber is. It is not the respondent. I conclude that the RESPs were likely owned by the claimant and/or his wife. The claimant made no contributions. The money was used for legal fees for what the claimant described as “the emergency situation of 2010” (the claimant’s affidavit, paragraph 12). If the claimant or his wife were subscribers, they were entitled to cash in the RESPs and use the money. 44 Neither the respondent nor the children were entitled to the RESPs. This claim sought by the respondent is dismissed. Since the claimant’s receipts for legal fees are related to the RESPs, I also dismiss that claim.

Dental Account 45 On January 9, 2014, the respondent incurred a dental bill of $241.02 for the removal of Courtney’s wisdom teeth. The $241.00 is the amount not covered by the claimant’s dental plan. The respondent informed the claimant of this expense by email. The claimant responded the same day stating that he would “gladly pay one half” of that cost so long as he received a copy of the receipt. No receipt was sent. 46 I find that the net amount of $241.02 was paid for by the respondent. I order that the claimant pay the respondent the sum of $120.51.

Graduation Expenses 47 The respondent incurred grade 12 graduation expenses $1,372.86. The respondent informed the claimant of those costs in January of 2015. The claimant was never asked whether or not he wished to contribute nor was he told of the anticipated expenses before they were incurred. 366 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

48 The respondent did not consult the claimant. There is no existing court order to cover such expenses. The claimant is not obliged to reim- burse the respondent for the graduation expenses. I dismiss this claim.

Orthodontic Expenses 49 The matter of orthodontic expenses is not directly before me. It was before Mr. Justice Masuhara on June 10, 2013. He ordered: 3. The Claimant, GARRY WALTER ZWACK, will make application to his benefits carrier with respect to the children’s braces. The Respondent, SHEILA MARIE ZWACK, also known as SHEILA MARIE BUTLER, will pay for the initial required payment for the Children’s braces and the net amount to be paid for the Children’s braces after benefits is to be shared by the parties’ proportionate to their respective incomes and the Respondent will receive credit for the payment. 50 There is no evidence before me whether the orthodontic treatment for the children has been undertaken, or for that matter, completed. 51 In an email dated January 9, 2015, directed to Ms. Vivian and intended for the claimant, the respondent writes: Please also consider that the girls are still dependants as long as they are the children of the marriage. dental costs will double for braces if this is the case. Just saying... 52 The claimant warned the respondent in an email dated January 12, 2015, as to the limits of his medical and dental coverage: I am not sure what you are “just saying”. You are implying that I have a choice about the BC medical and I also think that you are getting it mixed up with my extended health through work. I got forms and letters from the BC government regarding the girls MSP coverage. As they are turning 19, they have to have their own MSP UNLESS...they are in full time attendance in school. I have no say in this. period. So, regarding their coverage under my extended health care plan, I believe they can stay covered under it until 21 or longer if going to school. 53 I intend to vary Mr. Justice Masuhara’s order by ordering that the orthodontic treatment for either Courtney or Sydney must not proceed unless the respondent provides the claimant with an estimate of the cost of the treatment for each child. Further, she will provide to the claimant, consent in writing of the claimant’s extended benefits provider, stating that the work may proceed and that the amount that the service provider Zwack v. Butler H.C. Hyslop J. 367

will contribute to each child’s orthodontic expenses. Upon receipt of that information, either the claimant or the respondent may come before me to determine whether the orthodontic treatment should proceed and the contributions of each parent.

Are Courtney and Sydney Still Children of the Marriage as Defined by the Divorce Act? 54 This is the important question of this chambers application.

Statutory Framework 55 Section 2(1) of the DA defines “child of the marriage” as follows: “child of the marriage” means a child of two spouses or former spouses who, at the material time, ... (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;

The Guidelines 56 Sections 1 and 3 of the Guidelines read as follows: Objectives 1. The objectives of these Guidelines are (a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation; ... 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. (2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is (a) the amount determined by applying these Guidelines as if the child were under the age of majority; or 368 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. ... 7. (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: ... (e) expenses for post-secondary education; 57 I must mention the living arrangements of these children, in particular Courtney. Living at 150 Mile House and the move to Tatla Lake, limits Courtney’s opportunity to find employment. Sydney’s opportunities are also limited. She has no transportation and “does not have funding for child care or other extras”. 58 In the respondent’s affidavit #7, at paragraph 14, in an email dated January 9, 2015, addressed to Ms. Vivian, she states that Sydney will “take a year off to raise her child.” 59 In Budden v. Budden, 2001 BCSC 236 (B.C. S.C.), an adult child was living away from home and returned home in anticipation of the birth of her child. 60 It was argued before Justice Sinclair-Prowse that the words “or other cause” contained in the definition of a “child of the marriage” covered a child who gave birth to a baby of her own. 61 In Budden, the child for whom the support was sought was about 21 when she returned to live with her mother. Sinclair-Prowse J. stated the following: [15] In my view, these cases clarify that once a child has reached the age of majority at law they are expected to become financially independent. However, if they are precluded from doing so or achieving this because of illness or a disability, the obligation of the parent to support them will continue. This obligation can also continue if the child is unable to work because they are at school, presumably ac- Zwack v. Butler H.C. Hyslop J. 369

quiring credentials that will enable them to be self-supporting in the future. [16] However, the voluntary assumption of other responsibilities by an adult child (such as having a baby of their own) does not appear at law to revive the obligation of the parent to provide financial support for that child. There was no case law presented supporting the revival of this obligation simply because an adult child has a baby and cannot work because they are caring for that baby. Nor is such a principle in keeping with the underlying policy of this section, namely, that children are expected to become financially self-sufficient once they reach the age of majority. [17] In the present case, although the youngest daughter has attested in her affidavit that she might go to school in the future, that is not her present situation. Rather, she is living with Mrs. Budden because she has a baby and she does not presently have the financial resources to live independently. This is not sufficient to bring her within the definition of “child of the marriage” under the Divorce Act. 62 Sydney is not working or attending school because she must care for her child. Her plans for future education are uncertain. She requires a considerable amount of money, not only for tuition, but also for accommodation for herself and her child and his daycare. 63 In the future, Sydney may be a child of the marriage, however, at this hearing, Sydney is not a child of the marriage as she is not pursuing post- secondary education at this time and she has no immediate plans for future education. I find at this time that Sydney is not a child of the marriage as defined by the DA. 64 As of March 1, 2015, the claimant is no longer required to pay the respondent child support for Sydney pursuant to the order of Powers J. granted March 9, 2011. 65 At the hearing of this application, it was not known whether Courtney will be accepted into the Northern Lights College to take the aircraft maintenance engineering course. 66 The tone in the respondent’s affidavit and adopted by the children is that the claimant is responsible for all the costs of the children’s post- secondary education. This is not the law as both parents are responsible for the support of their children. 67 The claimant and his wife emphasized the importance of education to the children when the children lived with them. 370 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

68 One of the significant concerns that Powers J. had in determining where the children would reside was their academic performance. In his reasons for judgment cited at Z. (G.W.) v. Z. (S.M.), Powers J. referred to the efforts of the claimant and Ms. Vivian in assisting the children in their education: [19] Mr. Zwack enrolled the children in grade 2 in the elementary school near their home. Their school teacher and the learning assistant immediately became concerned about the children’s inability to read. Courtney was slightly better than Sydney, but essentially they were both described as non-readers. The teachers met with Mr. Zwack and Ms. Vivian in the first week of September 2003. Notes of that meeting indicate that both children were delightful and receptive and happy to be in school. That they appear to be listening, but they are not, that they find any reading activities difficult. Socially and emotionally, they were more grade two than grade one. A plan was put in place to assist the children. [20] A further meeting was held in October 2003 and indicated that both girls had progressed and were working hard. The notes of the meeting indicate concerns about their vision and that math is difficult for both of them. Notes indicate that the children are happy to be there and wish to stay. The children were referred to an optometrist and their home reading program was continued. A peer helper in learning was involved at the school and a further meeting was scheduled. The children did see an optometrist and through that both children were referred to a special reading program called the Vantage Reading/Bonding Education Center operated by Ms. Alice Ross. Ms. Ross recommended a vision therapy program and a specialized reading course for Sydney. This was implemented with the assistance of Ms. Ross and Mr. Zwack and Ms. Vivian. Ms. Ross indicates in her assessment of October 29, 2003, that they worked faithfully on this six week therapy program. Ms. Ross indicated that Sydney’s vision skills were now normal and that her ability to store words had im- proved, but that she would continue to need work because of the poor level of reading skills at the original time of her assessment. [21] Mr. Zwack and Ms. Vivian met with the teachers again in De- cember. The children had progressed a long way although continuing work was necessary. The plan was to continue working with Alice Ross and the home reading program and work on math when time was available. [22] Their school teacher, Ms. Chase, wrote a letter February 16, 2004, that indicated that by that time Courtney was performing at very early grade 1 level in language arts and math, but Sydney was Zwack v. Butler H.C. Hyslop J. 371

somewhat further behind and operating at the kindergarten level. The letter indicates that they had minimum absenteeism to that point. The letter confirms that both children had made significant improvements. The letter confirms that Mr. Zwack and Ms. Vivian have been vigilant in wanting to know how to best help both girls and have followed up with any recommendations. [23] The children were receiving thirty minutes of learning assistance per day since their arrival at their new school and were working with Mr. Zwack and Ms. Vivian at home on a regular basis with the programs prescribed for them. Both children successfully completed their grade two year. Courtney developed a keen interest in reading a variety of materials. Sydney made a great deal of improvement, although not quite to the same level as Courtney. Her teacher concluded that although she was not quite at the level considered adequate for grade two, she was very close to it. It was suggested that she receive continuing learning assistance. Math was still a concern for both of the children. It was recommended that the children be placed in separate classes, although both in grade three, during the next year. This was to help Sydney become more independent and self sufficient. [24] The children have been registered in grade three in Kamloops and continue to reside with Mr. Zwack and Ms. Vivian. They continue to receive extra assistance at school and Mr. Zwack and Ms. Vivian continue to work with the children at home. 69 The basis of the claimant’s application to terminate child support is the factor in Farden v. Farden, [1993] B.C.J. No. 1315 (B.C. Master), that when an adult child: ...unilaterally terminates a relationship with one of the parents without an apparent reason, that is a factor to be considered by the trial judge in determining whether it would be “fit and just” to provide maintenance for that child. 70 The respondent’s position is that the children, though over the age of 19, cannot withdraw from their parents’ financial support because they lack education to support themselves and that at the time of the hearing of this application the children intend on pursuing post-secondary education. 71 I find that the non-mandated Farden factor, relied on by the claimant, is not sufficient reason to end his financial obligation to Courtney. I find that if Courtney enters the North Lights College to take the course that I referred to earlier, she is still a child of the marriage as defined by the DA, and the claimant is still obliged to contribute to her support. Both 372 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

Courtney and the respondent must also contribute to her post-secondary education. 72 The next question is how much should the claimant be required to pay towards Courtney’s education? Both the claimant and the respondent’s incomes are similar. Courtney has no income and her savings are unknown. It is also unknown whether she can access student loans and other such assistance. 73 The amount of child support is determined pursuant to s. 3(a) and s. 7 of the Guidelines. This is the presumptive rule, whether the child is under or over the age of majority, not living with either parent, and not in the community in which the parent resides: Nordeen v. Nordeen, 2013 BCCA 178 (B.C. C.A.); Beissner v. Matheusik, 2015 BCCA 308 (B.C. C.A.). 74 In Beissner, Madam Justice Smith for the court recognizes that: [51} A child over the age of majority, however, “warrants unique considerations in determining the appropriate amount of support” including “[w]hether the child resides with either parent” (Bockhold at para. 17). Section 3(2)(b) of the Guidelines provides: (2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is ... (b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [52] In W.P.N. v. B.J.N 2005 BCCA 7, this Court held that s. 7 support for special and extraordinary expenses, that are subject to sharing between the parties, may be determined under s. 3(2)(b) where appropriate, including circumstances where the child of the marriage attends university away from home (see paras. 45-49). ... 75 All I have is an estimate of the cost of tuition and I am left to guess as to the other expenses Courtney would incur living in Dawson Creek. At the same time, Courtney is about to start her course, assuming she meets the required prerequisites set down by the college. Section 3(2)(a) is in- Zwack v. Butler H.C. Hyslop J. 373

appropriate because of the lack of information relating to resources available to Courtney. 76 I order that the respondent pay directly to Courtney the sum of $900.00 per month for a consecutive period of 15 months starting Sep- tember 1, 2015. However, the payment of this amount is conditional upon the following: 1. Courtney is accepted into Northern Lights College in Dawson Creek in the aircraft maintenance course; 2. The respondent shall provide the claimant with a certified copy of Courtney’s acceptance into the college and into the course described above; 3. Courtney shall provide the claimant with direct access to all information directly from the college regarding her attendance, her courses, her marks that she attains, the termination of the entire course, or parts of it; and 4. Certified copies of Courtney’s transcripts for the prerequisites En- glish and Physics. 77 Unless these conditions are met, the claimant does not have to pay child support as ordered above. The child support I have ordered shall be payable on the first day of each and every month for a period of 15 months and assuming that all conditions described above have been met. In the event Courtney ends her attendance at the college in the aircraft maintenance engineering course, then the claimant is no longer obliged to pay the child support. 78 As with Sydney, Courtney was not a child of the marriage pursuant to the DA between March 1, 2015 and August 1, 2015.

Costs 79 The claimant and respondent shall each bear their own costs. Order accordingly. 374 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

[Indexed as: Greenan v. Johns] Colin Greenan, Applicant and Kristine Johns, Respondent Brunon Zachariasz and Darlene Zachariasz, Applicants and Kristine Johns and Colin Greenan, Respondents Ontario Superior Court of Justice Docket: 892/07, 1208/08 2015 ONSC 1413 E. Gareau J. Heard: January 12-April 8, 2015 Judgment: August 31, 2015 Family law –––– Custody and access — Access — By person other than parent — Grandparent –––– Mother and father of two children separated — Con- sent order issued, granting mother sole custody and father supervised access — Paternal grandmother and step-grandfather (“grandparents”) were involved in children’s lives — Mother took children to meet biological paternal grandfather — Grandmother made disclosure of some kind to older child, respecting biological grandfather’s abuse of her — Mother cut off grandparents’ access — Order issued, granting grandparents supervised access to children — Father brought motion to change order to allow him unsupervised access; grandparents brought motion to change order to allow them unsupervised access including extended periods of time during holidays — Father’s motion dismissed; grandparents’ motion granted — Even if grandmother did provide child with graphic details of abuse, mother’s response was excessive and unwarranted — It was not in best interests of children for mother to terminate access to grandparents — Children had spent great deal of time with and were closely connected with grandparents, clearly enjoying and benefitting from relationship — Restricting grandparents’ access to supervised access imperiled and interfered with positive relationship — None of mother’s complaints justified curtailing contact, given close bond that had already developed — Grandmother’s difficulties with criminal law and mental health were part of her past and were not current issues — Any comments made by grandmother did not traumatize child to extent suggested by mother — Grandparents established that unsupervised access was in children’s best interests. Family law –––– Custody and access — Access — Supervised access –––– Mother and father of two children separated — Consent order issued, granting mother sole custody and father supervised access after apparent suicide attempt — Paternal grandmother and step-grandfather (“grandparents”) were involved in children’s lives — Mother took children to meet biological paternal Greenan v. Johns 375 grandfather — Grandmother made disclosure of some kind to older child, respecting biological grandfather’s abuse of her — Mother cut off grandparents’ access — Order issued, granting grandparents supervised access to children — Father brought motion to change order to allow him unsupervised access and to return children’s residency to his hometown; grandparents brought motion to change order to allow them unsupervised access — Father’s motion dismissed; grandparents’ motion granted — Father had turbulent and volatile relationships with grandparents, and romantic partners including mother and L — Dysfunc- tional relationship with L involved harassment that led to criminal convictions and hospitalization after apparent suicide attempt — Father painted picture of having turned life around with latest girlfriend and their daughter, but evidence showed that dysfunctional pattern continued with police being called during argument, with hospitalization, and with recent end of relationship — Father had not addressed anger management, mental health, and substance abuse issues — Father’s commitment to seeing children had not been sustained, with large gaps in time where he had not seen them even at supervised access facility where definite schedule could have been set up — Father and children loved each other, but he had not made them first priority in life. Family law –––– Custody and access — Terms of custody order — Mobil- ity –––– Mother and father of two children separated — Consent order issued, granting mother sole custody and father supervised access after apparent suicide attempt — Paternal grandmother and step-grandfather (“grandparents”) were involved in children’s lives — Mother cut off grandparents’ access — Order issued, granting grandparents supervised access to children and allowing mother to move with children to another city — Father brought motion to change order to allow him unsupervised access and to return children’s residency to his hometown; grandparents brought motion to change order to allow them unsupervised access including extended periods of time during holidays — Fa- ther’s motion dismissed; grandparents’ motion granted — Consent order, stating that “applicants” would not object to change in residency, was made in proceeding involving grandparents’ application for access — Even though father was united in interest with grandparents when they resolved matter, underlying minutes of settlement clearly identified father as being respondent in that application and literal wording of order could not be ignored — Father did not consent to move — Father did not try to prevent move by any interlocutory proceedings — Children had been living in new city for 18 months, and were well-settled there — Mother was pursuing post-secondary education to become economically self-sufficient — It was more beneficial for children to continue with move they had adjusted to — Given dynamics in this case, it made sense for there to be distance between adult parties. 376 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

Cases considered by E. Gareau J.: Chapman v. Chapman (2001), 2001 CarswellOnt 537, 141 O.A.C. 389, 15 R.F.L. (5th) 46, 201 D.L.R. (4th) 443, [2001] O.J. No. 705 (Ont. C.A.) — followed Giansante v. Di Chiara (2005), 2005 CarswellOnt 3290, [2005] O.J. No. 3184 (Ont. S.C.J.) — 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 Johnson v. Cleroux (2002), 2002 CarswellOnt 1559, 24 R.F.L. (5th) 422, (sub nom. J. (M.) v. C. (P.)) 159 O.A.C. 346, [2002] O.J. No. 1801 (Ont. C.A.) — referred to Kaplanis v. Kaplanis (2005), 2005 CarswellOnt 266, [2005] O.J. No. 275, 194 O.A.C. 106, 10 R.F.L. (6th) 373, 249 D.L.R. (4th) 620 (Ont. C.A.) — referred to McLaughlin v. Huehn (2004), 2004 ONCJ 426, 2004 CarswellOnt 6539, [2004] O.J. No. 5918 (Ont. C.J.) — followed R. (N.V.) v. K. (J.) (2001), 2001 NBQB 43, 2001 CarswellNB 202, (sub nom. R. (N.V.) v. K. (J.E.)) 239 N.B.R. (2d) 89, (sub nom. R. (N.V.) v. K. (J.E.)) 619 A.P.R. 89, [2001] N.B.J. No. 221 (N.B. Q.B.) — considered Statutes considered: Children’s Law Reform Act, R.S.O. 1990, c. C.12 s. 24(1) — considered s. 24(2) — considered s. 29 — considered Criminal Code, R.S.C. 1985, c. C-46 s. 145(3) — considered

APPLICATION by father to change order to allow him unsupervised access and to return children’s residency to his hometown; APPLICATION by grandparents to change order to allow them unsupervised access to children.

F. Baxter, for Applicant / Respondent M. Walz, for Respondent

E. Gareau J.:

1 Before the court are two motions to change, both brought on February 20, 2014 by the moving parties, Colin Greenan and Brunon Zachariasz and Darlene Zachariasz. By previous order of this court, these actions Greenan v. Johns E. Gareau J. 377

were tried together with Colin Greenan presenting evidence first, followed by Brunon Zachariasz and Darlene Zachariasz and with Kristine Johns responding in both motions to change. 2 The motions to change proceeded to trial by viva voce evidence. The trial was lengthy, spanning 33 days, commencing on January 12, 2015, with the evidence completed on April 8, 2015. The parties provided written submissions on a schedule set by the court. The list of the written submissions were received by the court on June 29, 2015. 3 At issue in the proceedings is the access to be exercised by Colin Greenan and Brunon Zachariasz and Darlene Zachariasz to two children, namely Joseph Douglas Johns born December 17, 2004 and William James Johns born October 21, 2007. 4 Colin Greenan is the biological father of both Joseph and William. Brunon Zachariasz and Darlene Zachariasz are the paternal grandparents of Joseph and William. Kristine Johns is the biological mother of Joseph and William. 5 The order sought to be changed by Colin Greenan is an order granted on consent on May 28, 2009 by Mr. Justice I.S. McMillan. The relevant portions of that order are contained in paragraphs 1 and 2 which read as follows: 1. The respondent mother shall have custody of the children, namely Joseph Douglas Johns born December 17, 2004 and William James Johns born October 21, 2007. 2. The applicant father shall have supervised access to the children herein until further order of the court. 6 Colin Greenan seeks to change the aforementioned supervised access or to an order of unsupervised access. 7 The order sought to be changed by Brunon Zachariasz and Darlene Zachariasz is an order granted pursuant to minutes of settlement on De- cember 4, 2012 by Mr. Justice G. Ellies. That order on its face is marked as “final order” The order of December 4, 2012 provides as follows: 1. The applicants shall have the following access to Joseph Douglas Johns born December 17, 2004 and William James Johns born Octo- ber 21, 2007: (a) alternate Sunday access for two hours in accordance with the supervised access facility availability until June 30, 2013; (b) phone access each Wednesday at 7:00 p.m., for 10 minutes with Colin Greenan and 10 minutes with Brunon and Darlene 378 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

Zachariasz, which may be changed to a different day, on the consent of the parties, in writing. The mother will have the children call the applicants until June 30, 2013, after which the mother will supply a phone number for this access; (c) the respondent, Kristine Johns, intends to move to Windsor after June 30, 2013 and the applicants will not object to this move and the parties will re-visit the issue of access and come to a further agreement, as circumstances may dictate. Failing such agreement, any of the parties may apply to the court for direction and an order re access; (d) the mother shall provide transportation to and from the supervised access facility when in Algoma; (e) there shall be no order as to costs. 8 Brunon Zachariasz and Darlene Zachariasz seek to change the aforementioned order by an order granting them specified unsupervised access including extended periods of time during the holiday periods. 9 The respondent, Kristine Johns, did in fact move the residency of Jo- seph and William from Garden River, Ontario (outside of Sault Ste. Marie) to Windsor, Ontario in March, 2014. The delay in the move was as a result of health difficulties experienced by Kristine Johns. 10 Subsequent to the change of residency of Joseph and William to Windsor, Ontario and within the motions to change, there were several significant temporary orders with respect to access, namely, the consent order of March 20, 2014 granted by McMillan, J.; the order of April 10, 2014 granted by Gareau, J.; and the order of October 2, 2014 granted by Gareau, J. More particular reference will be made to these orders further on in these reasons.

Factual Background 11 Colin Greenan and Kristine Johns began a serious relationship in No- vember, 2003. Their relationship progressed to the point where they got their own apartment in August, 2004 and resided together as common- law spouses until the Victoria Day long weekend in May, 2007. Ms. Johns was pregnant with William at the time she and Mr. Greenan separated. Although their relationship has moved from being friendly to un- friendly at various periods since May, 2007, they have not resided together as spouses since that date. 12 Darlene Zachariasz is the biological mother of Colin Greenan. Bru- non Zachariasz the step-father of Colin Greenan. The biological father of Greenan v. Johns E. Gareau J. 379

Colin Greenan is Gary Greenan, who was previously married to Darlene Zachariasz. The relationship between Darlene Zachariasz and Gary Gree- nan was turbulent and violent. Darlene Zachariasz was the victim of both mental and physical cruelty at the hands of Gary Greenan. Colin Greenan does not have a relationship with his biological father, Gary Greenan. 13 Although the amount of time they spent with Joseph and William is in dispute, it is clear that Brunon Zachariasz and Darlene Zachariasz had ongoing contact with Joseph and William from the time of their birth until late July, 2010. In late July, 2010, there was an incident involving an alleged comment made by Darlene Zachariasz to the child Joseph concerning Gary Greenan which led to Kristine Johns terminating all contact between Mr. and Mrs. Zachariasz and Joseph and William. More detailed reference will be made to the incident in late July, 2010 further on in these reasons. 14 Darlene Zachariasz and Brunon Zachariasz had no contact with Jo- seph or William from late July, 2010 to the order of Ellies, J. granted on December 4, 2012. Since the date of that order, the contact enjoyed by Mr. and Mrs. Zachariasz to Joseph and William has been supervised. 15 From the date of the December 4, 2012 order to the relocation of Jo- seph and William to Windsor, Ontario in March, 2014, Brunon and Darlene Zachariasz exercised access to Joseph and William at the supervised access facility operated by the Algoma Family Services agency in Sault Ste. Marie, Ontario. Their access was on bi-weekly visits each Sun- day from 2:00 p.m. to 4:00 p.m. Mr. and Mrs. Zachariasz exercised this access to Joseph and William regularly and faithfully. After the move of Joseph and William to Windsor, Ontario, a consent order was granted on March 20, 2014 by McMillan, J. which provided that Brunon Zachariasz and Darlene Zachariasz have continued supervised access in Windsor, Ontario as follows: (1) the applicants may have continued supervised access to the children, namely Joseph Douglas Johns born December 17, 2004 and William James Johns born October 21, 2007, per the current access order at: Windsor-Essex Child and Parent Place, 1015 Highland Avenue, Windsor, ON. (519-971- 0625); (2) the applicants shall have phone access each Sunday evening at 8:00 p.m.; (3) access set out herein shall be reviewed on April 10, 2014 and is consented to by all parties on a without prejudice basis. 380 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

16 A review of the aforementioned order did in fact take place on April 10, 2014. On that date, the court made the following temporary order: (1) There shall be an order providing that the applicants, Brunon Zachariasz and Darlene Zachariasz have telephone access each Sunday for up to 30 minutes between the hours of 8:00 p.m. and 9:00 p.m. with the respondent Kristine Johns to initiate the telephone call to the applicants. This access shall commence on Sunday, April 13, 2014. (2) In addition to telephone access, there shall be access to the applicants and to the respondent Colin Greenan on a schedule as follows: (i) April 27, 2014 in Sault Ste. Marie; (ii) May 18, 2014 in Sault Ste. Marie; (iii) June 22, 2014 in Sault Ste. Marie; (iv) July 20, 2014 in Sault Ste. Marie; (v) August 24, 2014 in Sault Ste. Marie; (vi) September 21, 2014 in Windsor; (vii) October 19, 2014 in Windsor; (vii) November 23, 2014 in Windsor; (viii) December 28, 2014 in Sault Ste. Marie. (3) All access shall be for a 2 hour period separately for Mr. Greenan and for Mr. and Mrs. Zachariasz on each visit and shall be supervised by the supervised access facility in Sault Ste. Marie for the Sault Ste. Marie visits and by the supervised access facility in Windsor, Ontario for the Windsor visits. (4) For the access visits in Sault Ste. Marie, the respondent mother shall drive the children to Sault Ste. Marie for the visits. On each of these visits in Sault Ste. Marie the applicants and the respondent father shall share in providing to the respondent Kristine Johns the sum of $200.00 to assist her in the travel costs of bringing the children to Sault Ste. Marie. (5) For the access visits in Windsor the applicants and Colin Greenan shall travel to Windsor for those visits at their own expense. (6) The parties shall cooperate with each other in completing and filing all documents required by the supervised access facili- ties in Sault Ste. Marie and Windsor to have the access commence. In particular, the respondent Kristine Johns shall coor- Greenan v. Johns E. Gareau J. 381

dinate with the supervised access facility in Windsor to have all intake processes completed to ensure that the supervised access in Windsor, Ontario takes place as provided for in this order. (7) The costs of all motions before the court today are reserved to the trial judge. 17 With respect to Brunon Zachariasz and Darlene Zachariasz, the court- ordered access visit on August 24, 2014 in Sault Ste. Marie, Ontario did not take place. This visit was cancelled by Kristine Johns. The cancellation of this visit was a highly contentious issue between the parties. 18 Brunon Zachariasz and Darlene Zachariasz brought a motion to the court for make-up access for the missed August 24, 2014 court-ordered visit. This motion was originally before the court on September 4, 2014 and was heard on October 2, 2014. The court varied the April 10, 2014 order to provide that the access by Mr. and Mrs. Zachariasz on December 28, 2014 be extended to 12:00 noon to 5:00 p.m. and be unsupervised. 19 That brief period of unsupervised access to Joseph and William was exercised by Brunon Zachariasz and Darlene Zachariasz as ordered. 20 With respect to the access exercised by Colin Greenan to his sons Joseph and William, after Mr. Greenan and Ms. Johns separated, they entered into an arrangement whereby they had joint custody of Joseph with each of them caring for Joseph on a week-about basis. William was not yet born. This arrangement is set out in the order of August 10, 2007 granted by Justice W.L. Whalen. The first paragraph of that order reads as follows: The child Joseph Douglas Johns born December 21, 2004 shall be in the care of Mr. Greenan until Monday, August 13, 2007 at 5:00 p.m. and then in the care of Ms. Johns until 5:00 p.m. on August 16, 2007 when the child will return to Mr. Greenan’s care until the following Thursday at 5:00 p.m., and the parties will thereafter have interim custody of the child week-about on a joint custody basis. 21 From this order in August, 2007 until May, 2008, Colin Greenan resided at the home of Brunon Zachariasz and Darlene Zachariasz at 106 Taskar Drive, Sault Ste. Marie, Ontario. When Joseph and later William was with Mr. Greenan on a week-about basis, pursuant to the August 10, 2007 order, the children were physically in the home of Mr. and Mrs. Zachariasz. 22 This arrangement continued until early May, 2008 at which time there was a falling out between Colin Greenan and Mr. and Mrs. Zachariasz. 382 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

Mr. Greenan left the Zachariasz home at that time, which prompted Bru- non Zachariasz and Darlene Zachariasz to bring their own court action (1208/08) to ensure that their contact with Joseph and William continue. 23 After Colin Greenan left the Zachariasz home in May, 2008, he had no permanent residence for a period of time and although he exercised unsupervised access to Joseph and William from May, 2008 to March, 2009, the times and where the access was to be exercised was facilitated co-operatively between Colin Greenan and Kristine Johns. 24 In March, 2009 there was an incident which led Mr. Greenan’s access with Joseph and William to change from unsupervised to supervised. There was an incident in March, 2009 in which Colin Greenan consumed prescription and non-prescription drugs in an apparent suicide attempt. Colin Greenan disputes that he intended to take own life suggesting that he only intended to capture the interest of Kara Lewis, who he was ro- mantically involved with either at the time or shortly before the incident. 25 The actions by Colin Greenan in March, 2009 resulted in a consent order granted on May 28, 2009 by the Honourable Mr. Justice I.S. Mc- Millan. Paragraphs 1 and 2 of that order reads as follows: 1. The respondent mother shall have custody of the children, namely, Joseph Douglas Johns born December 17, 2004 and William James Johns born October 21, 2007 2. The applicant father shall have supervised access to the children herein until further order of the court. 26 It is the order of May 28, 2009 granted by McMillan, J. that Colin Greenan seeks to change in this proceeding by having his access to Jo- seph and William move from supervised to unsupervised. 27 Colin Greenan’s access to Joseph and William has been supervised since March, 2009 as confirmed by the May 28, 2009 court order. The amount of access Mr. Greenan has exercised to Joseph and William has varied from time to time depending on his personal circumstances, as has the supervisor, who has been Kristine Johns at times and the supervised access facility in Sault Ste. Marie, Ontario. 28 The relationship between the parties has often been conflicted and is ever-changing. There are times when Colin Greenan and Kristine Johns are getting along and there are times when they are not. The same can be said for Colin Greenan’s relationship with his mother, Darlene Zachariasz and his step-father, Brunon Zachariasz and with Ms. Johns’ relationship with Mr. and Mrs. Zachariasz. Greenan v. Johns E. Gareau J. 383

29 The children, Joseph Douglas Johns born December 17, 2004 and William James Johns born October 21, 2007 are caught in this whirlwind of conflict between the adults and the ever-changing relationship between them. 30 It is against this factual background that the motion to change brought by the father, Colin Greenan, for unsupervised access and the motions to change brought by the paternal grandparents, Darlene Zachariasz and Brunon Zachariasz, are brought.

The Issues: (a) The Claim by Darlene Zachariasz and Brunon Zachariasz for Unsupervised Access 31 The paternal grandparents of Joseph and William, Brunon and Darlene Zachariasz, have been restricted to supervised access to their grandchildren since August, 2010. There has been two limited unsupervised visits by court order, one on December 28, 2014 and one on February 16, 2015, to which further reference will be made later on in these reasons. Kristine Johns has not allowed unsupervised access since August, 2010 due to an “incident” whereby Darlene Zachariasz is alleged to have made statements to Joseph about the biological father of Colin Greenan, Gary Greenan. These comments were, in Ms. Johns view, the culmination and final straw in a difficult relationship with Mr. and Mrs. Zachariasz in which she alleges they overstepped their boundaries as grandparents. At the end of the day, the essential reason that Kristine Johns does not want her children Joseph and William to have unsupervised access is that she does not trust Brunon and Darlene Zachariasz. As Kristine Johns put it in her evidence, “I don’t trust you to be around my kids, that is the issue.” 32 In assessing what type of access that Darlene Zachariasz and Brunon Zachariasz should have in the future to Joseph and William, bearing in mind what is in their best interest, it is essential to closely examine the relationship between Joseph and William and the Zachariaszes prior to the “incident” of August, 2010 and to examine the amount of time the children were spending with their paternal grandparents prior to August, 2010. Were the grandparents occasional players in their lives or were Joseph and William used to seeing them on a regular basis where strong family bonds had formed between them? 33 Brunon and Darlene Zachariasz paint a different picture than Kristine Johns as to the amount of time Joseph and William spent with their pa- 384 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

ternal grandparents from the birth of Joseph in December, 2007 to Au- gust, 2010. The evidence of the grandparents is that the time the children, especially Joseph, spent in their care was extensive. The evidence of Kristine Johns was that the time the children spent with their grandparents from December, 2007 to August, 2010 was not as much as the Zachariaszes are alleging and that during that period, their son Colin Greenan resided with them of and on and during the periods when Colin resided with his parents, the time spent by William and Joseph in the Zachariasz home was visits with Colin and not the paternal grandparents. 34 From the time Joseph was born on December 17, 2004 to the May long weekend in 2007, Kristine Johns and Colin Greenan resided together as a couple. Of course, during this period of time access would only involve Joseph as William was not born until October 21, 2007, after Colin Greenan and Kristine Johns had separated. The evidence of Kristine Johns was that during the period from December, 2004 to May, 2007 that often when Colin was to be caring for Joseph, in fact Darlene Zachariasz and Brunon Zachariasz were caring for Joseph. In fact, Darlene and Brunon re-arranged their schedules so they could care for Joseph from age 5 months to 8 months, while Kristine and Colin worked and prior to Joseph going to daycare in Garden River. Kristine Johns testified that often when she worked and Colin was entrusted with the care of Joseph, that she would come home after work and find that Jo- seph was not at their home, but rather at the Zachariasz home, which was upsetting to Kristine and a constant source of discord between Kristine and Colin. This was especially so during the period of 2006 until Kristine and Colin separated, when Kristine was working at Clyde’s Variety working from 4:00 p.m. to 10:00 p.m. Tuesday to Saturday. On the evidence of Ms. Johns, Colin Greenan was content to abdicate his parental responsibilities to his parents which freed him up to go out with his friends on the evenings that Ms. Johns worked. 35 The evidence of Brunon Zachariasz was that after Joseph was born until May, 2007, that Joseph was regularly at their home and that Kris- tine Johns really had no issues leaving Joseph at their home at that time. Darlene Zachariasz testified that from the time Joseph was one month old he stayed overnight at their home. This is disputed by Kristine Johns who testified that Joseph did not stay overnight away from her at anyone’s home until he was one year of age. There is a disagreement on the evidence between Darlene and Kristine about the amount of time Joseph was spending in the Zachariasz home from 2005 to 2007. Darlene Zachariasz testified that Joseph was there almost every weekend. Kris- Greenan v. Johns E. Gareau J. 385

tine disagrees with the suggestion that Joseph was in the care of the Zachariaszes every weekend from the time he was born up until Colin and she separated. It was her evidence that prior to May, 2007, Joseph was never out of her care more than two days at a time. 36 It is not necessary for the court to dissect with exact precision the amount of time Joseph was spending in the care of Brunon and Darlene Zachariasz from his birth to May, 2007. Suffice it to say that during this period Joseph spent time in the care of his paternal grandparents and by the time his parents separated in May, 2007, the Zachariaszes were not strangers to Joseph, but were heavily involved in his life. This is apparent from the disc of photographs entered as Exhibit 31 in the trial. This disc shows still photographs of Joseph in the Zachariasz home at various stages of his development. The progression of Joseph in age and development is apparent in these photographs. Exhibit 31 makes it clear that Joseph spent time in the Zachariasz home and that he was comfortable in their home. 37 After Kristine Johns and Colin Greenan separated in May, 2007 and Kristine Johns returned from Alberta to Sault Ste. Marie, Ontario with Joseph on June 25, 2007, she and Colin Greenan entered into an arrangement that they would have week-about care of Joseph. This arrangement was formalized in a court order granted on August 10, 2007 by Whalen, J. At that time, Colin resided in the home of his parents, Darlene and Brunon Zachariasz. Colin lived in the Zachariasz home from May, 2007 to May, 2008 at which point he left the Zachariasz home. On considering all of the evidence at this trial, there is no doubt that during this period Joseph was in the Zachariasz home for one-half of each month and that it was Darlene and Brunon Zachariasz, and not Colin Greenan, that were caring for Joseph when it was Colin’s time to care for Joseph on the week-about arrangement with Kristine Johns. This was the evidence of both Darlene Zachariasz and Brunon Zachariasz and it was acknowledged by Kristine Johns in her evidence. Ms. Johns was not happy that Joseph was not going to daycare and that instead Darlene Zachariasz was watching Joseph when Colin was working or in school during this period of time. 38 The court proceeding between Colin Greenan and Kristine Johns led to a report by the Office of the Children’s Lawyer, which is dated March 31, 2008 and was prepared by Mike Zuliani, a clinical investigator. That reort was entered as Exhibit 13. As noted in Mr. Zuliani’s report, Kris- tine Johns indicated that “I knew Colin was going to school. I knew Jo- 386 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

seph was not going to daycare.” That meant that Joseph was being cared for by Darlene and Brunon Zachariasz. As noted on page 6 of Mr. Zu- liani’s report, Ms. Johns prefers to raise Joseph herself rather than Mr. Greenan’s mother raising Joseph on alternate weeks. She worries that having two mother figures might confuse Joseph. The first paragraph of page 10 of Mr. Zuliani’s report reads as follows: Mr. Greenan enjoys having his son with him on alternate weeks but has stated that he and his mother have disagreements on the parenting of Joseph. He often feels that his mother is too involved I the care of Joseph. However, it would be natural that Darlene to be so involved in the care of Joseph as she is with him for four days during Mr. Greenan’s week. Any serious disagreements or conflict about the parenting of Joseph would likely negatively affect Joseph. Joseph may be confused about having “two mothers” rather than one mother and one grandmother. 39 I place no weight on the recommendations made by Mr. Zuliani in his report on the present disposition of this matter given the report is over seven years old. Having said that, the comments in Mr. Zuliani’s report are useful because they provide a snapshot of the situation of the parties, especially as it pertains to Joseph, in early 2008. 40 Ms. Johns points to the aforementioned comments about Joseph maybe being confused about having “two mothers” in support of her contention that Darlene Zachariasz was overbearing and overstepped the boundaries of a grandmother when it came to Joseph. There may or may not be merit in that position. What the comments in Mr. Zuliani’s report do indicate independently is that Joseph had spent a great deal of time with Darlene Zachariasz and has bonded with her. How else could confusion between “two mothers” potentially arise with Joseph? 41 Filed as Exhibit 35 is an affidavit of Kristine Johns sworn on June 10, 2008. This affidavit is made by Ms. Johns in response to an affidavit of Brunon Zachariasz and Darlene Zachariasz sworn May 16, 2008. In paragraph 6 of Ms. Johns’ affidavit, she states in part: In paragraph 6 of Brunon and Darlene Zachariasz’s affidavit, it states that Joseph has a close relationship, has strong emotional ties, is comfortable and secure, a loving relationship with them, and he is used to the routine as a regular part of his life. I could say the same for my family. Kristine Johns, in her affidavit, does not deny that Joseph has the type of relationship with his paternal grandparents that Brunon and Darlene Greenan v. Johns E. Gareau J. 387

Zachariasz suggest. This type of relationship does not happen unless Jo- seph spent a great deal of time with the Zachariaszes. 42 I am well satisfied on the totality of all of the evidence that by the time Colin Greenan left the Zachariasz home in May, 2008, that Joseph had spent sufficient time in the Zachariasz home being cared for by Bru- non Zachariasz and Darlene Zachariasz that he had bonded with them and they with him. 43 Incidentally, nowhere in Mr. Zuliani’s report was it suggested by Kristine Johns that Mr. and Mrs. Zachariasz were not providing good care to Joseph when he was in their care. The difficulty, from Ms. Johns’ perspective, was that the lines were blurred and that the Zachariaszes were spending too much time in the care of Joseph so that the distinction between “mother” and “grandmother” was not being seen or appreciated by Joseph. 44 The report of Mr. Zuliani, coupled with the leaving of the Zachariasz home by Colin Greenan, led to a new order being entered into by the parties, which was granted on June 27, 2008 by Tranmer, J. That order provides that Mr. Greenan’s and Ms. Johns have joint custody of Joseph and William with the children to have their primary residence with Ms. Johns. Mr. Greenan had alternate Saturday and Sunday access from 11:00 a.m. to 7:00 p.m. to be expanded to alternate weekend access when Mr. Greenan obtained suitable accommodation. 45 As Kristine Johns stated in her evidence, by June, 2008 “I didn’t think Colin was the main caregiver, so I wanted Joseph to be primarily with me.” Clearly, it was the Zachariaszes who were the main caregivers of Joseph during the period that he had Joseph on a week-about basis. 46 When Colin Greenan left the Zachariasz home in May, 2008, it was not on the best of terms. It was the result of an argument between Colin and his mother, Darlene. It was the evidence of both Darlene Zachariasz and Brunon Zachariasz that at the time of leaving, Colin threatened not to allow his parents to see Joseph or William again. As Mr. Zachariasz put it, Colin said, “Enjoy your last ten minutes with your grandchildren.” Colin Greenan does not deny making this comment to his parents when he left their home in May, 2008. This comment prompted Brunon Zachariasz and Darlene Zachariasz to bring their own application for an order for access, which was commenced on May 28, 2008. It was the evidence of both Mr. and Mrs. Zachariasz that their court application was “mothballed”, not pursued, because Kristine Johns was giving them extensive contact with Joseph and William. 388 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

47 Kristine Johns disputes the suggestion that the contact that Joseph and William had with their grandparents was extensive between May, 2008 and the time of the “incident” in August, 2010. It was the evidence of Kristine Johns that during this period of time, initially Darlene and Bru- non Zachariasz did not have contact with Joseph and William after several weeks access was resumed. Ms. Johns estimates that the contact was perhaps once a month. Ms. Johns was not specific as to dates and times and her recollection was based on generalities and not on specifics. Ms. Johns testified that “I can’t remember exactly” how much time the Zachariaszes had Joseph and William in their care, but “I don’t think they had very much access during this period.”, perhaps once a month. Certainly, it was the evidence of Ms. Johns that the time Brunon and Darlene Zachariasz had with Joseph and William was not near as much as they were suggesting for the period between May, 2008 and August, 2010. 48 After March, 2009 Colin Greenan’s access to Joseph and William was supervised. Ms. Johns testified that from September, 2009 to May, 2010, Colin Greenan resided in the home of his parents, Brunon and Darlene, and that during this period he had access one weekend a month at the Zachariasz home and another weekend a month at her home. It was the evidence of Kristine Johns that the time Joseph and William spent in the Zachariasz home from September, 2009 to May, 2010 was for Colin’s access, not independent time with the children set aside for Bru- non Zachariasz and Darlene Zachariasz. 49 Not surprisingly, Darlene Zachariasz and Brunon Zachariasz paint a different picture regarding the amount of time they spent with Joseph and William during the period from May, 2008 to August, 2010. It was the evidence of both Mr. and Mrs. Zachariasz that they had Joseph and Wil- liam up to three weekends a month. Their evidence was that they were actively involved with Joseph and William and in their care. It was the evidence of Darlene Zachariasz that from May, 2009 until August, 2010, there was not a month that would go by that they would not have Joseph and William with them for two full weekends which often extended to Mondays. Brunon Zachariasz testified that on the Mondays he would be late for work as he wold have to get William to daycare in Garden River by 9:00 a.m. and Joseph to school in Sault Ste. Marie by 9:30 a.m. 50 Entered as Exhibit 47 at the trial was a calendar for the year 2010. This calendar was purportedly kept by the Zachariaszes with checkmarks on the days where they had either Joseph or William in the year 2010. Greenan v. Johns E. Gareau J. 389

Although it was the evidence of Brunon Zachariasz that they had Joseph and William all day and night during the days marked, there is no nota- tion on the calendar as to the exact times the children were with them on the days marked. Nonetheless, if the calendar is correct, the only conclusion that can be drawn is that Brunon and Darlene Zachariasz had Joseph and William frequently and extensively in their care in 2010 leading up to the “incident” in early August, 2010. 51 The calendar, marked as Exhibit 47, has a checkmark on the following days throughout 2010: January 5, 6, 16, 17, 23, 24, 30, 31; February 1, 6, 7, 8, 9, 10, 14, 15, 16, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28; March 1, 6, 7, 14, 15, 16, 17, 18, 19, 20, 21, 27, 28, 29; April 4, 5, 6, 16, 17, 18, 19, 24, 25, 26, 28, 29, 30; May 1, 2, 3, 7, 8, 9, 10, 11, 15, 16, 21, 22, 23, 24, 25, 26; June 4, 5, 6, 7, 8, 9, 18, 19, 20, 30; July 1, 2, 3, 4, 5, 9, 10, 11, 15, 16, 17, 18, 26, 27, 29. 52 Brunon Zachariasz testified that the last three days marked in July (26, 27, 28) were the days William and Joseph were with he and Darlene after the boys visited with Gary Greenan in Toronto and before access was cut off by Kristine Johns. The specific notations on the July, 2010 calendar are on the dates July 19 to July 23 “kids away with Mom — Gary!”, on July 26, 27, 28, “at our house” and on July 29 “saw at park.” 53 It is fair to say that in considering the evidence of Kristine Johns and the evidence of Brunon and Darlene Zachariasz as to the time Joseph and William spent at the Zachariasz home from May, 2008 leading up to the cut-off of access in August, 2010, the evidence of Brunon Zachariasz and Darlene Zachariasz is more exact and precise than the evidence given by Kristine Johns. The Zachariaszes are able to provide the court with particulars and details about the times the children were in their care and what they did with Joseph and William. Kristine Johns provided generalities, estimates as to time, readily admitting that she “can’t remember exactly” about the times, guessing that it was no more than once a month. The evidence of Kristine Johns with respect to the time William and Joseph were in the care of Brunon and Darlene Zachariasz during this time period is short on specifics. 54 There is also the matter of the 2010 calendar entered as Exhibit 47. Although there are no specifics on the calendars as to exact times that Joseph and William were in the care of Brunon and Darlene Zachariasz, there is no reason to doubt the evidence given by Darlene and Brunon Zachariasz with respect to the calendar entries. The entries on Exhibit 47 390 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

support the recollection that Brunon Zachariasz and Darlene Zachariasz had with respect to the frequency that Joseph and William were in their home up to August, 2010. 55 The court also notes that there was not much activity on the application commenced by the Zachariaszes on May 28, 2008 from that date until August, 2010 when access was denied by Kristine Johns. The cumulative table of contents in the court file indicates that most of the activity in the court file was after August, 2010. This, in my view, goes to substantiate the contention of Mr. and Mrs. Zachariasz that they were seeing Joseph and William without restriction and in amounts of time they were content with from June, 2008 to August, 2010. 56 There is no love lost between the Zachariaszes and Kristine Johns. There is much acrimony between them. Darlene Zachariasz and Brunon Zachariasz are not wall flowers. They have no hesitation in forcefully pursuing their remedies if they believe that an injustice has been inflicted upon them. Having heard all of the evidence in this matter, there is no doubt in my mind that Brunon Zachariasz and Darlene Zachariasz would have been in court on a motion if they were being denied access to Jo- seph and William by Kristine Johns. The fact that the parties were not in court between May 28, 2008 and August, 2010 with the application brought by the Zachariaszes essentially being “mothballed” during that period of time speaks volumes and, in my view, goes a long way to substantiate their contention that they had frequent and extensive contact with Joseph and William between the time Colin Greenan left their home in May, 2008 to the time Kristine Johns took the position that they should not have further contact with Joseph and William in August, 2010. 57 On the evidence before me, I prefer the position taken by the Zachariaszes over the position taken by Kristine Johns as to the times Brunon and Darlene Zachariasz had Joseph and William in their care during this period leading up to August, 2010 and find as a fact that the times were frequent and extensive, not the once-a-month visits as suggested by Kristine Johns in her evidence. 58 Undoubtedly, by the time, August, 2010 arrived, the grandparents played a major role in the lives of Joseph and William and Joseph and William played a major role in the lives of Brunon Zachariasz and Darlene Zachariasz. 59 What happened in August, 2010 to change all of that? That brings us to Gary Greenan. Gary Greenan is the biological father of Colin Gree- Greenan v. Johns E. Gareau J. 391

nan, Andrew Greenan and Heather Greenan. At one time he was the spouse of Darlene Zachariasz. Mrs. Zachariasz testified that she was pregnant with Colin at the age of 18. Darlene Zachariasz married Gary Greenan after the birth of Colin and after her 19th birthday. They were married in August, 1982 and separated in August, 1988. Darlene Zachariasz, Gary Greenan and their children resided in Toronto, Ontario. It was not until Darlene Zachariasz married Brunon Zachariasz in 1990 that they moved from Toronto to Sault Ste. Marie in August, 1991. It was the evidence of Darlene Zachariasz that her marriage to Gary Greenan was one riddled with domestic violence with the culminating incident occurring iin 1988 which caused her to separate from Gary Greenan. Af- ter Darlene Zachariasz and Gary Greenan separated, Gary Greenan was estranged from his children Colin, Andrew and Heather. Colin Greenan had periodic contact with his biological father and his evidence was that the first time he saw Gary Greenan alone was in the summer of 2008. Gary Greenan expressed an interest to see Colin’s children Joseph and William but that did not occur. Colin Greenan testified that the second time he saw Gary Greenan, his friend Kara Lewis was with him. That was in 2009. Colin did not take William and Joseph to meet Gary Gree- nan in the summer of 2009. It was just Colin and Karen Lewis on that visit. 60 It was the evidence of Kristine Johns that Colin Greenan and she had intended to take Joseph and William to visit with Gary Greenan in the summer of 2010 but at the last minute, Colin Greenan backed out of the trip. Colin Greenan strongly denies this suggestion by Kristine Johns and was adamant in his evidence that no such trip was planned. As Colin Greenan stated clearly in his evidence, “I didn’t want any kids seeing Gary Greenan.” 61 Kristine Johns testified that she “talked to Gary Greenan regularly” since 2007. In late July, 2010 Kristine Johns, her mother Colleen Mc- Cabe and William and Joseph left on a planned one-week trip to Toronto to visit Marcella Jones, who was a friend of Colleen McCabe’s and who was recovering from knee surgery. A visit with Gary Greenan was planned for this trip, but by the time she arrived in Toronto, Kristine Johns was not sure if she was going to visit Gary Greenan or not. As Kiristine put it, “I didn’t know if I was going to follow through or not.” It was the evidence of Kristine Johns that she was undecided about whether to see Gary Greenan or not because the boys’ father, Colin, had not come on the trip. 392 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

62 Colleen McCabe was very clear in her evidence that she thought that Joseph and William should meet Gary Greenan, for the boys to know that side of their family. Colleen had done the same thing with Kristine. Kristine’s father, Tim, was not close to his father, Joe, but Colleen took the initiate to introduce Kristine to her paternal grandfather, Joe, against the wishes of Tim and everything turned out fine. Colleen McCabe testified that her former husband, Tim, was eventually thankful that Colleen had taken the steps to introduce Kristine to her paternal grandfather, Joe. From the evidence of Colleen McCabe, the court was left with the ines- capable conclusion that Colleen McCabe was forcefully advocating for a meeting between Gary Greenan and Joseph and William. As Colleen McCabe put it in her evidence, “I told Kristine to give Gary a call and she called him.” 63 Joseph and William did in fact meet Gary Greenan on the trip to To- ronto in late July, 2010. The first meeting was at a park down the street from the home of Colleen McCabe’s friend, Marcella Jones. The second meeting took place at the home of Gary Greenan’s mother, Frances Gree- nan. Kristine Johns, Colleen McCabe, Joseph and William ended up accepting an invitation to stay at the home of Frances Greenan and stayed at her home for three days, including two overnights. Colleen McCabe testified that everyone enjoyed the visit. As she put it, “they catered to us. I was impressed.” 64 I accept the evidence of Colin Greenan that this visit between his children Joseph and William and his biological father, Gary Greenan, occurred without his knowledge or consent. Kristine Johns testified that she only told Colin Greenan about the visit when she was already in Toronto and that she told him by text message “because I didn’t want him to get mad.” Both Kristine Johns and Colleen McCabe testified that when Colin Greenan called the home of Frances Greenan that Colin was upset. Ms. Johns describes him as “freaking out — yelling and screaming”. Ms. Mc- Cabe described Colin’s telephone call as “not a pleasant call” and testified that after Colin talked to Gary Greenan, he said “Colin is pretty upset with me.” I find it difficult to accept the evidence of Kristine Johns that the reason Colin Greenan was upset was because he was not on the trip; not part of the introduction between his sons and his biological father. Colin Greenan was very definite and clear in his evidence that he did not want his sons meeting Gary Greenan and that Kristine Johns knew it was his express wish. When Colin Greenan was giving evidence about his biological father, he would become upset often being reduced to tears, which became sobs. When Colleen McCabe gave her evidence Greenan v. Johns E. Gareau J. 393

about the visit between Joseph and William and Gary Greenan, Colin became visibly upset in the courtroom and in fact had to leave the courtroom. I found these reactions by Colin Greenan and his evidence on this point to be genuine. There is no doubt in my mind that the fact is that Colin Greenan did not want Joseph and William around Gary Greenan, that Kristine Johns knew this and that Ms. Johns was talked into the visit by her mother, Colleen McCabe. 65 After the week in Toronto, Ms. Johns, Ms. McCabe, Joseph and Wil- liam returned to Garden River. Brunon Zachariasz and Darlene Zachariasz wanted to see Joseph and William and there is a consensus in the evidence that Joseph and William stayed with the Zachiariaczes for three days after their return home from Toronto. Exhibit 47, the 2010 calendar, was shown to Colleen McCabe who testified that she believed the entries for July 26, 27, 28 were correct meaning that Joseph and Wil- liam would have gone to the Zachariasz home on July 26 and were returned to Kristine Johns on July 28, 2010. 66 Kristine Johns, her mother Colleen McCabe and other family members were camping at Ojibway Park after their return from Toronto. It was at Ojibway Park where Joseph and William were returned by Bru- non Zachariasz and Darlene Zachariasz, presumably on July 28, 2010 as indicated by Exhibit 47. It was the evidence of Colleen McCabe that Jo- seph had just finished lunch at Ojibway Park and was mad because he wanted to go swimming, but was not allowed to. A family member asked Joseph about his trip and said to Joseph “I heard that you met your grandfather”, to which Joseph replied “That’s not my grandfather. My Nana said that Gary Greenan put a knife to my Nana’s throat and beat her up and killed her unborn baby.” It was the evidence of Colleen Mc- Cabe that at least 15 people heard Joseph make these comments at Ojib- way Park. Kristine Johns testified that after Joseph ate, she wanted to show Joseph pictures of their trip to Toronto, to which Joseph replied that they were a bunch of liars; that Gary was not his real family; that Gary was a murderer; that he kicked his Nana in the tummy and killed her baby and that he put a knife to her throat while she was in the shower. Ms. Johns described Joseph as being very detailed in the comments that he made about Gary Greenan. 67 Brunon Zachariasz and Darlene Zachariasz were at the ball field the next day where Joseph was getting a medal. Ms. Johns testified that she avoided them because “I didn’t want to cause a big scene.” Darlene Zachariasz testified that something was different when she was at the 394 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

ball field and that they were not being allowed to be alone with Joseph and William and were being followed everywhere they went with Joseph and William while at the ball field. 68 There was a previous family vacation planned. The Zachariasz were to take Joseph and William on a family vacation at the beginning of Au- gust, 2010. When Darlene Zachariasz telephoned Kristine Johns the day after being at the ball park to firm up when she would be picking up Joseph and William for their trip, Darlene was told by Kristine Johns that it was inappropriate to say those things to Joseph. It was the evidence of Kristine Johns that Darlene Zachariasz denied saying the things to Joseph that he repeated at the Ojibway Park campsite. Ms. Johns testified that she told Darlene Zachariasz that she was not taking Joseph and William on the trip. Darlene Zachariasz testified that during this telephone conversation, Kristine Johns said to her “Joseph and William aren’t coming to your house today, the boys are not going on the trip and the boys are not seeing you anymore.” 69 Colleen McCabe testified that she was angry at the statement made by Joseph. She described Darlene Zachariasz as being “sick” and indicated that she told her daughter Kristine that there was “something definitely wrong with Darlene.” Colleen McCabe also indicated in her evidence that she told Ms. Johns that she would not let Darlene Zachariasz see Joseph and William alone, believing that the same thing that happened to Colin Greenan would happen to Joseph and William if Darlene Zachariasz continued to see them. 70 As a result of this “incident” at Ojibway Park, Brunon Zachariasz and Darlene Zachariasz did not have any scheduled contact with Joseph and William from August, 2010 to the supervised access order granted on consent on December 4, 2012 by Ellies, J. 71 Darlene Zachariasz strongly denies making the statements to Joseph attributed to him by Kristine Johns and Colleen McCabe. However, Darlene Zachariasz does admit making a comment to Joseph about Gary Greenan, which she acknowledges in her evidence that: “I do regret saying that to Joseph because I frightened him.” What Darlene Zachariasz testified occurred with respect to Joseph was that she, Brunon Zachariasz and Joseph were in the kitchen of the Zachariasz home. Joseph looked up and said to Brunon Zachariasz, “You are not my real Papa. I met my real Papa.” Joseph went on to say “I met my daddy’s real daddy and that’s not you.” And “My Aunt Nini isn’t my real aunt. That’s not daddy’s real sister.” Darlene Zachariasz testified that she was stunned and shocked by Greenan v. Johns E. Gareau J. 395

Joseph’s comments and said to Joseph, “That’s not true. Papa is your Papa and Nini is your aunt and daddy’s sister.” That man you saw was a bad man and he hurt Nana.” Mrs. Zachariasz testified at that point she hugged Joseph and told him not to worry, to which Joseph replied “I don’t like him, Nana. I don’t like that man anymore.” At this point, Bru- non Zachariasz intervened and had Joseph go outside to play with the other children. Darlene Zachariasz testified that this is the only time she spoke to Joseph about Gary Greenan. 72 Brunon Zachariasz was also in the kitchen and heard the exchange between Darlene Zachariasz and Joseph. Mr. Zachariasz confirmed that the exchange took place in the kitchen at his home. Mr. Zachariasz indicated that Joseph said, “Papa is not my real Papa and Auntie Nini is not my real aunt.” Joseph said, “I met my real grandfather and two aunties there.” It was Mr. Zachariasz’s evidence that to this comment by Joseph, Darlene Zachariasz replied that he was a “bad man”. Mr. Zachariasz testified that his wife was upset and went to the bathroom. Mr. Zachariasz testified that he took Joseph outside to play with the other children. When pressed, Mr. Zachariasz testified that he recalled Darlene Zachariasz telling Joseph that he was “a bad man” but he could not recall if Darlene Zachariasz told Joseph that Gary Greenan had hurt her. In this regard, Mr. Zachariasz’s evidence is not entirely consistent with the evidence given by Darlene Zachariasz. There are elements that are different concerning the conversation between Joseph and his paternal grandmother about Gary Greenan. Having said that, I found that Mr. Zachariasz was doing his best to recall the conversation. I did not find that he embellished or exaggerated his evidence. He had the opportunity to tailor his evidence to fit exactly with the evidence given by Darlene Zachariasz, but he did not do so. 73 The court had all the evidence it could have from Mr. and Mrs. Zachariasz concerning the conversation between Joseph and Darlene Zachariasz concerning Gary Greenan. Mr. and Mrs. Zachariasz were both present and they both testified about this. Kristine Johns and Col- leen McCabe testified as to what was purportedly said by Joseph about his conversation with Darlene Zachariasz concerning Gary Greenan. Al- though Colleen McCabe testified that a least 15 other people heard what Joseph had said at Ojibway Park, none of these individuals were called to testify as part of Kristine Johns’ case. As a result of this, the court has no truly independent evidence as to what was said to Joseph and what Jo- seph said. The court has the parties and Colleen McCabe. In my view, Colleen McCabe cannot in any way be considered an independent wit- 396 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

ness. She is a witness closely allied to her daughter, Kristine Johns. Col- leen McCabe has such animus toward Darlene Zachariasz that any evidence she gives must be given a great deal of scrutiny. I would classify her evidence as venomous. At times she was seething with anger when giving her evidence. She testified that she did not have a good feeling about Darlene Zachariasz from the beginning. She described Darlene Zachariasz doing this “just to be miserable.” In her evidence, Ms. Mc- Cabe would make degrading comments about Darlene Zachariasz such as she was “sick” and comments like “if the Zachariasz would just butt out everybody would be happy then.”, and in her evidence, she attributed all the problems experienced by Colin Greenan to his mother, Darlene Zachariasz. Colleen McCabe admitted to being angry with Darlene Zachariasz and indicating in her evidence that “I still am.” That anger spilled over to the criminal court when Colleen McCabe was charged with assaulting Darlene Zachariasz in an incident that occurred at the court house on April 11, 2013 when the parties were present on a motion in these proceedings. Darlene Zachariasz indicated that Colleen McCabe lunged toward her, knocked her down, put her hands on her throat and threatened her. Colleen McCabe testified that she had heard Darlene Zachariasz talking about her daughter, Kristine, in the hallway of the court house and she “lost it”, as she put it, grabbed Darlene Zachariasz by the collar of her coat, shook her and attempted to throw her on the floor, but Darlene Zachariasz ended up landing on a chair. Colleen Mc- Cabe was the incensed mother. As Ms. McCabe herself put it, “when it comes to my kids, I would do anything to protect my daughter.” In any event, Ms. McCabe was placed on a two-year peace bond. The matter was reported on the Soo Today website as is indicated in Exhibit 10, Tab 4. 74 Colleen McCabe described in her evidence that she really did not have much of a relationship with Darlene Zachariasz or Brunon Zachariasz indicating that “they kept to themselves”, Ms. McCabe finding this sneaky as if something was not quite right with them. As Mc- Cabe put it in her evidence, “I didn’t want to get to know them.”, referring to Brunon Zachariasz and Darlene Zachariasz. Despite not knowing them that well, in paragraph 10 of her affidavit, sworn February 26, 2014, entered as Exhibit 33, Ms. McCabe states: The applicant and I are very close. We confide in each other and have experienced the most devious, malicious and deceitfulness in all our lives on this earth. I’ve never seen anything like this. They are Greenan v. Johns E. Gareau J. 397

plain evil and very dysfunctional. It’s not about the boys anymore, it’s about winning to get them. They just can’t leave it alone. 75 It is difficult for the court to appreciate how Colleen McCabe can say on the one hand that she didn’t know Brunon and Darlene Zachariasz that well and on the other hand, be able to know them well enough to be able to assess them as “plain evil and very dysfunctional”. What the court is able to appreciate and conclude on her evidence is that Colleen McCabe has such hostile, negative and vengeful feelings toward Mr. and Mrs. Zachariasz, especially Darlene Zachariasz, that her views are coloured and distorted to the point that very little weight, if any, can be given to the evidence she gave at the trial. I do not consider her evidence independent or corroborative in any way concerning the statements made by Joseph attributed to his paternal grandmother about Gary Greenan. 76 The closest the court has to independent evidence about the statements between Joseph and Darlene Zachariasz concerning Gary Greenan is contained in the report of the Children’s Lawyer dated April 13, 2011 prepared by Jeannine Denis, Clinical Ivestigator. That report is filed as Exhibit 11, Tb 4. Jeannine Denis testified at the trial as a witness called by Mr. and Mrs. Zachariasz. I am aware that Ms. Denis’ report is dated. However, it is useful in that it is prepared contemporaneously with the August, 2010 incident and the denial of access to the Zachariasz by Kris- tine Johns. On page 11 of her written report, in discussing her two interviews with Joseph, Ms. Denis did not note that the child made any reference to the Gary Greenan incident in her first interview with Joseph. Ms. Denis did note in her first interview with Joseph that “he acknowledged that his mother and grandparents are fighting.” As to the second interview, Ms. Denis writes in her report at page 11: “During the second interview, Joseph stated that his mother told him that he would no longer see his Grandmother Zachariasz. The child kneeled on the floor and looked at the visitor when asked if he knew what was going on between them. He said that Mrs. Zachariasz told him that Gary Greenan was a murderer. He then began to walk around his bedroom. He acknowledged that his parents did not hit him as a means of discipline and that his father did not sleep at their home. Joseph appeared anxious about the situation and went upstairs.” 77 In giving her evidence, Jeannine Denis indicated that this is all the disclosure that Joseph made about what Darlene Zachariasz had said to him about Gary Greenan. Ms. Denis referred to her notes and the exact comment made by Joseph as reflected in her notes was “Nana told him 398 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

that Gary Greenan was a murderer.” This was the entirety of the disclosure made and it was clear to Ms. Denis that Joseph did not want to talk about the matter further. 78 Based on the totality of the evidence, the court is unable to arrive at a definite conclusion as to what was said to Joseph by Darlene Zachariasz or what was said by Joseph at the Ojibway Park campground about Gary Greenan. Even if Joseph did in fact say what Kristine Johns attributes to him and this was in fact said to Joseph by Ms. Zachariasz, clearly the response of Kristine Johns was excessive and unwarranted. It may have been in the best interest of Ms. Johns to remove the Zachariasz from her life, but I cannot conclude that it was in the best interest of Joseph and William for Ms. Johns to terminate access to grandparents that the children had spent a great deal of time with and had become closely connected with. I agree entirely with the opinion expressed in her evidence by the OCL clinical investigator, Jeannine Denis, that the terminating of access to the grandparents was not proportionate to what was alleged to have been said by the grandmother. 79 I am also of the view that taking Joseph and William to visit Gary Greenan, without the agreement and consent of Colin Greenan, given the troubled relationship that he had with Gary Greenan and continuing with the visit after Colin Greenan had called expressing his upset with it, showed a colossal lack of judgment on the part of the mother and that by doing so, Ms. Johns crossed inappropriate boundaries. I agree entirely with the comments of Ms. Denis in the second full paragraph of page 20 of her report which reads as follows: In regards to Ms. Johns’ visiting Mr. Greenan’s biological father, her action seems to lack boundaries as well as respect and sensitivity. Her action only fuelled the conflict between her and Mr. Greenan and Mr. and Mrs. Zachariasz. To make plans with her mother and decide to tell the children about Mr. Greenan’s identity and to visit him without Mr. Greenan’s knowledge appears to enflame the conflict with Mr. and Mrs. Zachariasz and Mr. Greenan. To spend an incredi- ble amount of time with Mr. Greenan and not consult with him about the visit and to claim that the children need to know their real biological grand-father while denying Mr. and Mrs. Zachariasz access and to say that the abuse they suffered is not her problem seems to polar- ize the parties further apart at the expense of the children. Ms. Johns needs to resolve the conflict within her milieu instead of beginning a new relationship that only confuses her children more. It is recom- Greenan v. Johns E. Gareau J. 399

mended that Ms. Johns would not visit Mr. Greenan (grand-father) with the children without Mr. Greenan’s permission. 80 Kristine Johns took exception to the report produced by the OCL clinical investigator and spent a great deal of time in her evidence outlin- ing what she perceived to be the errors, omissions and deficiencies in the report prepared by Ms. Denis. Ms. Johns felt that the OCL report prepared by Ms. Denis was more favourable to Brunon and Darlene Zachariasz than the OCL report prepared by Mike Zuliani, so she favoured the Zuliani’s report. It was Ms. Johns’ view that the Denis report was more sympathetic to the mental health issues of Darlene Zachariasz and less focused on what was in the best interest of Joseph and William. 81 Filed as Exhibit 38 at the trial was an affidavit of Kristine Johns sworn on June 24, 2011 which particularizes the complaints that Ms. Johns had with the OCL report prepared by Jeannie Denis. In giving her evidence, Ms. Johns had to look at this affidavit carefully in order to identify the complaints about Ms. Denis’ report that she wished to bring to the court’s attention. The complaints of Ms. Johns include that Ms. Denis did not interview the people that knew her; Ms. Denis didn’t read all the back affidavits; Ms. Denis did not talk to Mike Zuliani about his previous OCL report; Ms. Denis did not process or investigate all the involvement by the Children’s Aid Society of Algoma with Ms. Johns that was initiated by Darlene Zachariasz; Ms. Denis did not talk to any staff members at the old school that Joseph attended; that Ms. Denis was rushed in the preparation of her report; that Ms. Denis did not consider the cancellation of Joseph’s baptism which Ms. Johns alleges Darlene Zachariasz cancelled; that Ms. Denis did not investigate the difficulties that Ms. Johns had with Ontario Works which Ms. Johns alleges that Darlene Zachariasz caused; that Ms. Denis did not read journals from 2007 and 2008 that Ms. Johns had kept when the care of Joseph was being shared by his parents on a week-about basis; and, that overall, the OCL report contained impressions related to by Ms. Denis were views expressed by Darlene Zachariasz and not views expressed by Kristine Johns. 82 Although these are a long litany of complaints, I cannot conclude, given the overall investigation completed by Jeannine Denis, that if the aforementioned concerns had been addressed, that it would have changed the outcome of the report or the recommendations in the report prepared 400 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

by Jeannine Denis. My view is that the aforementioned complaints about matters not addressed are picayune in nature. 83 There are more serious suggestions of omissions and irregularities in procedure in the OCL report raised by Kristine Johns. Colin Greenan was only interviewed once for the preparation of the report. Colin did not respond to a request for a second interview. Ms. Denis, in her evidence, acknowledged that she thought a second interview with Colin Greenan was important, indicating that she told Ms. Johns “it is imperative that you get in touch with Colin for the second interview.” There were incorrect dates in Ms. Denis’ report which were pointed out during her evidence at trial. For example, in her report, Ms. Denis states that she interviewed the parties on February 27th. This is not possible because the final disclosure meeting with Ms. Denis, the parties and counsel took place on February 23rd. The notes of Ms. Denis are also in error as her notes have the disclosure meeting taking place on March 1st. Ms. Denis gathered information and spoke to the parties after the disclosure meeting took place, which is contrary to the practice usually employed b Ms. Denis and contrary to the protocol of the Office of the Children’s Lawyer. For example, on March 29, 2011, Ms. Denis received report cards from the school and spoke to the teacher at the new school of Joseph on March 21st, 2011. On March 11th and 23rd, 2011, Darlene Zachariasz contacted Ms. Denis and she spoke to her. Ms. Denis spoke to Andrew Greenan on March 23rd, 2011 and to Brunon Zachariasz on March 22nd, 2011. All these conversations took place after the disclosure meeting held on Feb- ruary 23rd, 2011. Jeannine Denis admitted that it was unusual to receive such information after the disclosure meeting. As she put it, “normally at the disclosure meeting, it is the end.” It was the evidence of Ms. Denis that “I had a lot of information to make recommendations” by the time the disclosure meeting took place on February 23rd, 2011 and that the information gathered after the disclosure meeting did not alter the view she expressed at the disclosure meeting which was consistent with the recommendations contained in her written report dated April 13th, 2011. 84 Having heard all of the evidence in this matter over the course of an eight-week trial, I cannot conclude that Jeannine Denis was in error in the overall views she expressed about the parties and their interaction with one another. She expressed concern about the conflict between all the adults and the effect that it would have for Joseph and William. As Ms. Denis stated, “The concern I have is the impact of the conflict between the adults on the children.” Ms. Denis’ view concerning Gary Greenan and how any introduction of him to Joseph and William should Greenan v. Johns E. Gareau J. 401

be handled by respecting the views of Colin Greenan and the comments made by Ms. Denis as to how this was handled by Kristine Johns, makes a great deal of sense to me given the evidence I heard over the course of the trial pertaining to the dynamics between the parties. 85 A report of the Office of the Children’s Lawyer is not determinative of the issue of custody and access. The court is not bound by the recommendations nor should it be enslaved by them. The report is but one piece of evidence to be considered by a court in determining what is in the best interest of children. I am not persuaded that the report of Jean- nine Denis is so deficient, as Ms. Johns suggests, that it should be given no weight. In arriving at a decision, I have considered the report and the comments made in the report and the viva voce evidence provided by Jeannine Denis at trial. My impression of Ms. Denis was that there was no predisposition or bias in the views she expressed. Her focus was on Joseph and William and the effect of the conflict of the parties on them. I found Ms. Denis careful in her evidence with a good recollection of the interviews conducted to prepare her report and the details of her report. I found the observations and views that Ms. Denis gave in her evidence to be insightful and of assistance to the court. I am not prepared to disregard the opinions expressed by Jeannine Denis. 86 A great deal of time was spent as part of the case presented by Kris- tine Johns pointing out what I would call deficiencies in the character of Darlene Zachariasz with the suggestion that this supports the position that access by Mrs. Zachariasz to Joseph and William should be supervised. Darlene Zachariasz has a criminal record. In 1990 Darlene Zachariasz was convicted of fraud involving a defrauding of Mother’s Allowance. She was placed on probation. This was disposed of in To- ronto, Ontario. In 1999, Darlene Zachariasz was charged with another scheme of fraud involving Ontario Works. Mrs. Zachariasz indicated n her evidence that in the year 2000 she entered a plea of guilty, received a custodial sentence to be served intermittently on weekends, was placed on a probation order which included a term of 100 hours of community service work and a substantial amount of restitution, which has not yet been fully satisfied. Darlene Zachariasz also revealed in her evidence that around the year 2006, she was charged with driving with a suspended license, but claims that she was unaware that her license had been suspended due to an unpaid speeding ticket in Parry Sound, Ontario which she believed had been paid. 402 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

87 In her evidence, Darlene Zachariasz indicated that the criminal convictions for fraud, especially the 1999 conviction, lead to extreme embar- rassment and depression. Mrs. Zachariasz took an overdose of Tylenol pills, which led to a hospitalization at the Riverview Center in Sault Ste. Marie, Ontario from December 4th, 2001 to February 28th 2002. Mrs. Zachariasz was treated by Dr. Gordon MacMichael. Entered as Exhibit 29 is a report dated March 28, 2002 from Dr. MacMichael which reads as follows: This lady has severe depression which predates her hospital admission by about two months. She attempted unsuccessfully to deal with the depression at home but eventually was admitted to hospital on December 4, 2001 and was not well enough for discharged until Feb- ruary 28, 2002. She is currently in a number of outpatient treatment programs and is seen by myself in office visits on a monthly or more frequent schedule. She is on medication as well and her treatment plan is under regular review. She will require two years of intense treatment to get over this depression with its flashbacks and agitation. With time and treatment, her prognosis for return to normal productive work activity is very good. 88 Darlene Zachariasz describes her treatment as intense for what was post-traumatic stress and a complete breakdown. Mrs. Zachariasz testified that she was a patient of Dr. MacMichael for a year and that since that time, she has seen Sandra Wallenius periodically to primarily talk with her regarding events in her life that she needs assistance coping with. Entered as Exhibit 36 is a file summary from Mrs. Wallenius. San- dra Wallenius is an Employee Assistance Counsellor who describes herself as a family and marriage therapist and a cognitive behavioural therapist. A review of Exhibit 36 indicates that between January, 2007 and December, 2012, there were two opened and closed files. The files were opened as part of the benefits available to Brunon Zachariasz through his employment with the Ontario Lottery and Gaming Corporation. The services provided by Mrs. Wallenius were related to “family dynamics, access to two grandsons and relationships.” A review of the contents of the file summaries indicate that a great deal of the nine session discussions revolved around the two grandchildren and family dynamics. There is no indication in the records of Sandra Wallenius that during the period 2007 to 2012 Darlene Zachariasz was experiencing similar difficulties which led her to be hospitalized in 2001. Greenan v. Johns E. Gareau J. 403

89 My view of the difficulties experienced by Darlene Zachariasz, both with the criminal law and mental health difficulties, is that they are part of her past and dated in time. There is no evidence presented at the trial that Darlene Zachariasz is currently suffering depression or any other mental illness that would prevent her from safely being around Joseph and William or impair her ability to meet their needs if they were in her care. Although Darlene Zachariasz entered into a recognisance in criminal court on May 2, 2012, this was related to Kristine Johns and the denial of access by Ms. Johns to Joseph and William. This is an isolated event as was the subsequent conviction for the breach of the recognisance for a telephone call placed by Darlene Zachariasz to Kris- tine Johns. I would not classify these occurrences as rampant criminal or anti-social activity, but rather acts situational in nature. I agree with Ms. Denis’ classification of the calls made by Mrs. Zachariasz to Ms. Johns as “desperate acts” to see her grandchildren that must be kept in context. 90 Any inquiry into custody and access must examine the attributes of the individuals requesting access, but also the children themselves; what they have expressed and how the children have interacted with these individuals in the past. After all, it is an inquiry into what is in the best interest of the children. 91 It is easy to conclude on the evidence presented at trial that Joseph and William have enjoyed and benefitted from the time that they have spent with their paternal grandparents, Brunon and Darlene Zachariasz. Ami Cerenzia is a Child Protection Worker with the Children’s Aid Soci- ety of Algoma. She has nine years’ experience with that agency. A file was assigned to her in April, 2013 arising out of the assault and conflict between the paternal grandmother and the maternal grandmother and, in particular, the assault by Colleen McCabe on Darlene Zachariasz which occurred at the Sault Ste. Marie court house. As part of her involvement on the file Ms. Cerenzia had occasion to interview Joseph and William. This meeting with the children occurred on May 1, 2013. William presented as very shy and he did not engage with Ms. Cerenzia, who reported that this was normal for a child William’s age. Joseph, on the other hand, was open and enthusiastic and engaged with Ms. Cerenzia. Joseph knew that there as conflict between the adults and indicated to Ms. Cerenzia that his mom and nana don’t get along. Joseph also indicated that his “mom says that nana is sick in the head.” Joseph described his visits with Brunon and Darlene as “terrific” and described that he saw them every second Sunday (this would be supervised access at the Super- vised Access Facility). Joseph expressed that he doesn’t get to see his 404 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

grandparents enough. Joseph told Ms. Cerenzia that he feels safe with his mother and father and with his nana and papa. Interestingly, Joseph never mentioned to Ami Cerenzia the comments by Darlene Zachariasz to him concerning Gary Greenan. If those comments were troubling to Joseph at the time he spoke to Ami Cerenzia, one would assume that Joseph would have mentioned it to her, given the nature of the interview being conducted by Ms. Cerenzia. 92 Exhibit 31 is a disc of still pictures depicting Joseph in the home of Darlene and Brunon Zachariasz in their care. These photographs progress in time to after William was born as he included in the photographs as well. These photographs show warm family relations. Joseph, especially, is shown as being completely comfortable and at ease with his paternal grandparents. In one of the pictures, Darlene Zachariasz and Joseph are sitting on a chesterfield with both of their heads back laughing. These photographs display a strong connection between the children, especially Joseph, and Brunon and Darlene Zachariasz. 93 Entered as Exhibit 12 was a video of part of the court-ordered unsupervised access visit with Joseph and William which took place in the Zachariasz home on December 28, 2014. This video shows Joseph and William happy, comfortable and animated while playing freely in the Zachariasz home. There was no sign of hesitation or discomfort evident in Joseph or William in this video. The children would have last been at the Zachariasz home in late July, 2010 but it is as if Joseph and William had never been away from the Zachariasz home given their obvious comfort level in the home of their grandparents. No one, not knowing the history of this matter, would conclude that Darlene Zachariasz or Brunon Zachariasz were subject to a supervised access order for Joseph and Wil- liam when viewing the video entered as Exhibit 12 in the trial of this matter. 94 It was the conclusion of Jeannine Denis, in her reported dated April 13, 2011, (Exhibit 11, Tab 4) that Darlene Zachariasz and Brunon Zachariasz have unsupervised access to Joseph and William on alternate weekends from Friday after school to Sunday at 6:00 p.m.; in the summer for one week in July and one week in August and for three days during the Christmas holidays. Ms. Denis noted on page 20 of her report that “the observation clearly indicated that the grandparents have a very close bond with Joseph and William. The dysfunctional dynamic between the adults is what seems to be more disturbing for the child.” When asked in her viva voce evidence why it might not be better to have Greenan v. Johns E. Gareau J. 405

the grandparents walk away from the children given the conflict that exists between the adults, Ms. Denis’ response was that the bond between the grandparents and the children was too strong for that to be in their best interest. It was the view of Jeannine Denis that the bond and the relationship of Joseph and William with the Zachariaszes was stronger than the need to remove the children from the conflict between the adults. 95 Kristine Johns takes the position that as the mother of Joseph and William, it is her right to decide with whom Joseph and William should associate; who should have contact with them and on what conditions. Ms. Johns argues that the court should defer to her decision that she wants Joseph and William only to see their paternal grandparents under a supervised access regime. Ms. Johns cites the principles set out in Chapman v. Chapman (2001), 15 R.F.L. (5th) 46 (Ont. C.A.) as legal authority for that proposition. Madam Justice Abella (as she then was) identified the issue in the Chapman case at paragraph 1 which reads as follows: The issue in this case is whether access by a grandparent to grandchildren who live with their parents should be imposed over the wishes of those parents and the children. This case raises questions about the relationship between children and members of their extended family and, in particular, who decides its parameters. No one disputes that the purpose of access is to preserve a child’s positive relationship in as constructive a manner as possible (Young v. Young [1993] 4 S.C.R. 3). The issue in this case arises because the relationship between the grandparent and the grandchild is regrettably, not a positive one. 96 As noted by Madam Justice McSorley in McLaughlin v. Huehn, 2004 ONCJ 426 (Ont. C.J.) in Chapman, the children “did not have a positive relationship with their grandmother and the trial judge imposed access in the speculative hope that a relationship could be built.” 97 The Ontario Court of Appeal in Chapman allowed the appeal, set aside the trial judge’s order and dismissed the grandmother’s application for access. In doing so, the court noted in paragraph 22 of the decision: Larry and Monica Chapman, not Esther Chapman, are responsible for the welfare of the children. They alone have this legal duty. Es- ther Chapman, as a grandparent, loves her grandchildren and under- standably, wants to maintain contact with them. Nonetheless, the right to decide the extent and nature of the contact is not hers, and neither she nor a court should be permitted to impose their perception 406 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

of the children’s best interest in circumstances such as these where the parents are so demonstrably attentive to the needs of the children. The parents have, for the moment, decided that those needs do not include lengthy, frequent visits with their grandmother. Although the parents’ conflict with Esther Chapman is unfortunate, there is no evidence that this parental decision is currently detrimental to the children. It should therefore be respected by the court and the children’s best interests left in the exclusive care of their parents. 98 The key words in the above paragraph are “there is no evidence that this parental decision is currently detrimental to the children.” This must be so given the comments of Abella, J.A. in paragraph 19 of the Chap- man decision as follows: A relationship with a grandparent can — and ideally should — en- hance the emotional well-being of a child. Loving and nurturing relationships with members of the extended family can be important for children. When those positive relationships are imperiled arbitrarily, as can happen, for example in the re-organization of a family following the separation of the parents, the court may intervene to protect the continuation of the benefit. 99 The Chapman decision was considered by Nelson, J. in the case of Giansante v. Di Chiara [2005 CarswellOnt 3290 (Ont. S.C.J.)], 2005 CanLII 26446. In that case, the court indicated that courts should generally defer to a parent’s choice regarding whether grandparents should have contact with their children unless all three of the following questions are answered in the affirmative: (1) Does a positive grandparent/grandchild relationship already exist? (2) Has the parent’s decision imperiled the positive grandparent/grandchild relationship? (3) Has the parent acted arbitrarily? 100 I agree with the comments expressed by Madam Justice McSorley in the McLaughlin decision, where at paragraph 27 she states: The case of Chapman v. Chapman and Chapman does not stand for the proposition that the wishes of a parent or the issue of access by a member of the extended family should take precedence over the factors in Section 24 of the Act. It is but one factor that must be considered. It is always important to defer to the decision of the parents regarding their children. But deference is only accorded when those decisions are reasonable. When the decision to end all contact between a child who has a positive relationship with grandparents, un- Greenan v. Johns E. Gareau J. 407

cles, cousins and great aunts and grandmothers is made entirely because of hurt feelings from three to five years ago, then the decision is not reasonable and is no longer entitled to deference. 101 In the case of R. (N.V.) v. K. (J.) (2001), 239 N.B.R. (2d) 89 (N.B. Q.B.), Justice Robichaud observed at paragraph 25: Even in cases of high conflict between a parent and a grandparent, courts have ordered grandparent access where bonding had occurred with the grandchildren, or where the court was satisfied that the parent was placing his or her own animosity and satisfaction of personal needs ahead of the children’s best interest. 102 The facts of the case at bar are exactly opposite to the facts that existed in the Chapman case. In Chapman, there was no existing relationship between the grandparent and the grandchild. In Chapman, the trial judge attempted to create a relationship where one did not exist and did so contrary to the wishes of the custodial parent. 103 In analyzing the three-part test set out in Giansante v. Di Chiara, it is clear on the evidence that a positive grandparent-grandchild relationship already exists between Joseph and William and the Zachariaszes and that the decision of Ms. Johns to restrict the access to that of supervised access has imperilled and interfered with the positive relationship between Joseph and William and their paternal grandparents. Supervised access in a sterile setting for necessary short periods of duration impairs the full development between the child and an access parent. It only stands to reason that a relationship is likely unable to grow and fully develop to the benefit of the children if access is restricted in such a fashion. 104 As discussed earlier in these reasons there is ample evidence to find that there is a close bond between Joseph and William (especially Jo- seph) and their paternal grandparents, Brunon Zachariasz and Darlene Zachariasz. Mr. and Mrs. Zachariasz had frequent and ongoing contact with Joseph from the time of his birth in 2004 until August, 2010 and with William from the time of his birth in 2007 until August, 2010. Ex- hibit 12 reveals that this close bond and comfort level exists between Joseph and William and the Zachariaszes as recently as December 28, 2014. Further, the comments made by Joseph to both the OCL clinical investigator, Jeannine Denis and the Children’s Aid Society worker, Ami Cerenzia, reveal that Joseph is comfortable with the Zachariaszes, does not have any fear around them and wishes to continue to see them. As indicated by Ami Cerenzia in her evidence, there was nothing to suggest 408 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

that Joseph and William were not safe around Brunon Zachariasz or Darlene Zachariasz. 105 None of the actions of the Zachariaszes or complaints by Ms. Johns about the Zachariaszes prior to August, 2010 justify curtailing the contact that the paternal grandparents had with Joseph and William, given the amount of contact they had enjoyed with the children and the close bond that developed between the children and their grandparents. As to the events in August, 2010, even if Mrs. Zachariasz told Joseph that he was a murderer and killed her baby and held a knife to her throat; even if these comments were made, they do not justify a termination of access by Ms. Johns or a restriction of access to one of supervised access. I accept and agree entirely with the opinion of the children’s lawyer clinical investigator, Jeannine Denis, that the actions of Ms. Johns was not a response proportionate to the actions committed by Darlene Zachariasz. On the evidence, I am not satisfied that Darlene Zachariasz told Joseph that Gary Greenan was a murderer, that he killed her baby and that he held a knife to her throat. There are conflicting versions of what was said by Kristine Johns, her mother, Colleen McCabe and even by Joseph himself. Obviously, something was said to Joseph by Darlene Zachariasz which was inappropriate, by Mrs. Zachariasz’s own admission. Even at its worst, my view is that it did not justify the actions of Kristine Johns. It may have been better for her and more convenient to her to have Darlene Zachariasz and Brunon Zachariasz out of her life, but that was not what was best for Joseph and William. In my view, Kristine Johns acted arbitrarily and unreasonably in requiring access to be supervised. 106 I am also not convinced that any comments made by Darlene Zachariasz to Joseph traumatized Joseph to the extent suggested by Kris- tine Johns. Undoubtedly, Darlene Zachariasz should not have made any comment to Joseph about Gary Greenan. Any concerns or comments that Darlene Zachariasz had about Gary Greenan or Joseph’s visit with him should have been directed to Kristine Johns. Ms. Denis did observe that Joseph seemed “anxious about talking about the situation” after he told Ms. Denis that “Mrs. Zachariasz told him that Gary Greenan was a murderer.” That was in early 2011. When Joseph spoke to Ami Cerenzia on May 1, 2013 Joseph did not even mention the Gary Greenan incident to Ms. Cerenzia. Kristine Johns testified that after the comments made by Joseph in late July, 2010 about what Darlene Zachariasz said to him about Gary Greenan that she arranged for Greenan v. Johns E. Gareau J. 409

counselling for Joseph by Iris Bertrand. Ms. Bertrand was not called as a witness to testify at the trial. It was the evidence of Ms. Johns that Joseph saw Ms. Bertrand four to six times over a couple of months in early 2011. It was also the evidence of Kristine Johns that Ms. Bertrand dis- continued the counselling for Joseph as she was of the opinion that Jo- seph did not require any further ongoing counselling. It strikes me that if the consequences to Joseph from the comments made by Darlene Zachariasz were damaging and severe to him that he would have required more lengthy or intensive counselling from Ms. Bertrand or another counsellor. That intensive counselling for Joseph did not occur and in fact Joseph has not required any counselling since Ms. Bertrand related to any comment made to him by Darlene Zachariasz or any conduct by Darlene Zachariasz or Brunon Zachariasz. 107 Kristine Johns has taken the position that there has been no material change in circumstances established which would justify a change in the present supervised access regime as it relates to Brunon Zachariasz and Darlene Zachariasz. Section 29 of the Children’s Law Reform Act, R.S.O. 1990, c. 12, as amended, reads 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 likely to affect the best interests of a child. Mrs. Johns argues that no such material change in circumstances has been established by Mr. and Mrs. Zachariasz. 108 The final order made out of the application commenced by Brunon Zachariasz and Darlene Zachariasz dated May 28, 2008 was the order granted on December 4, 2012 by the Honourable Mr. Justice M.G. Ellies. That order provides for supervised access until June 30, 2013. The order also provides that upon the mother, Kristine Johns, moving to Windsor after June 30, 2013, “the parties will re-visit the issue of access and come to a further agreement, as circumstances may dictate. Failing such agreement, any of the parties may apply to the court for direction and an order re access.” 109 The order of December 4, 2012 clearly provides that the access received by Brunon Zachariasz and Darlene Zachariasz to Joseph and Wil- liam is reviewable after June 30, 2013. The provision in the order itself entitles Mr. and Mrs. Zachariasz to a review of the supervised access order without establishing a material change of circumstances. In my view, the move by Kristine Johns with Joseph and William from Garden 410 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

River, Ontario to Windsor, Ontario in March, 2014 constitutes a material change of circumstances if a material change was required to be established by Brunon Zachariasz and Darlene Zachariasz. 110 Section 24(1) of the Children’s Law Reform Act provides that the merits of an application for access to a child shall be determined on the basis of the best interests of the child. 111 Section 24(2) provides that: Best interests of child (2) The court shall consider all the child’s needs and circumstances, including, (a) the love, affection and emotional ties between the child and, (i) each person entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10. 112 In considering the totality of the evidence and the factors set out in s. 24(2) of the Children’s Law Reform Act, I am more than satisfied that the applicant paternal grandparents have satisfied their onus in establishing Greenan v. Johns E. Gareau J. 411

that unsupervised access by them with Joseph Douglas Johns born De- cember 17, 2004 and William James Johns born October 21, 2007 is in the children’s best interest. Darlene Zachariasz and Brunon Zachariasz have unrestricted contact with their other grandchildren, Connor, Kevin and Ava and there is no reason why they should have supervision restrictions on their contact with Joseph and William. 113 Accordingly, there will be a final order granting Brunon Zachariasz and Darlene Zachariasz unsupervised access to Joseph Douglas Johns born December 17, 2004 and William James Johns born October 21, 2007. The exact details of the amount of access ordered will be set out in the conclusion section of these reasons.

b) The Claim by Colin Greenan for Unsupervised Access 114 Colin Greenan was born on June 15, 1982. He is presently 33 years of age. Colin is the biological father of Joseph and William and also the biological father of Ava, who was born on May 9, 2012. Amanda Gard- ner is the biological mother of Ava. 115 It is fair to say that Colin Greenan has led an unsettled life. Colin’s biological parents, Darlene Zachariasz and Gary Greenan separated in 1988. Colin moved from Toronto to Sault Ste. Marie in August, 1991. He would have been nine years of age. By that point in time Colin was estranged from his biological father, Gary Greenan, and his mother Darlene was married to Brunon Zachariasz. Darlene Zachariasz testified that during Colin’s teenage years, she had a great deal of difficulty controlling Colin’s behaviour. Colin was absenting himself in school and was involved with alcohol and drugs and the party scene. The relationship that the Zachariaszes had with Colin continued to break down to the point that Colin left the Zachariasz home when he was approximately 17 years of age. 116 Colin Greenan’s relationship with Darlene and Brunon Zachariasz from that point onward to the present time can best be described as turbulent. Sometimes they get along and are on speaking terms. Sometimes they don’t get along and do not have much to do with each other. At the time Kristine Johns was pregnant with Joseph, in 2004, Colin was estranged from the Zachariaszes for a period of approximately four years. When Colin Greenan and Kristine Johns separated in May, 2007, Colin moved back into the Zachariasz home and was there for approximately one year to May, 2008. In May, 2008, Colin and his mother Darlene had a disagreement and Colin left the Zachariasz home, threatening that 412 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

Darlene Zachariasz and Brunon Zachariasz would never see their grandchildren, Joseph and William again. That prompted Mr. and Mrs. Zachariasz to bring their own court application for access to Joseph and William. That application was commenced in May, 2008. In his answer dated June 29, 2008 Colin Greenan took the position at paragraph 6 c) and d) that: c) an order for grandparent access is not necessary or appropriate; my mother and (step) father should have access informally through me. d) I have concerns about the grandparents having too much influence on the upbringing of the children. 117 The relationship between Colin Greenan and Brunon Zachariasz and Darlene Zachariasz obviously did not improve from May, 2008 to Febru- ary 28, 2011 as indicated by Exhibit 15, which is an affidavit of Colin Greenan sworn on February 28, 2011. In that affidavit, Colin Greenan makes it clear that, at least at that time, he was not in favour of Brunon Zachariasz or Darlene Zachariasz having independent access with Joseph and William. Paragraphs 10 and 11 of Colin Greenan’s affidavit are as follows: 10. My mother Darlene claims she and I are trying to repair our relationship and this is untrue. I have not spoken to her since September, 2010, mainly because she could not communicate as an adult. I advised her I was not about to rekindle a relationship until she was sin- cere about her apology. 11. I state clearly, that I would not deny her access to our children for no reason, however, she is a risk to our children. I feel that just because she is a grandparent she does not have the right to treat the children any way she chooses, particularly when it conflicts with the parties’ wishes. At the trial, Colin Greenan indicated that he was upset with the Zachariaszes when he signed this affidavit indicating, “I was lashing out against my parents.” 118 Exhibit 15 was sworn on February 28, 2011. By the time of the order of December 4, 2012, granting Mr. and Mrs. Zachariasz supervised access to Joseph and William, Colin Greenan had made up with the Zachariaszes and he was in support of them having independent contact with his children. It was clear that during the trial of this matter, Colin Greenan was supportive of Brunon and Darlene Zachariasz having unsupervised access to Joseph and William independent of any access he might receive. As to his future relationship with Brunon and Darlene Greenan v. Johns E. Gareau J. 413

Zachariasz, in his evidence at trial, Colin Greenan testified that “I can’t say that one day I won’t get mad at them. I don’t want the kids or parents to suffer if I get mad at them.” Clearly, there is no predictability to the type of relationship or lack of relationship that Colin Greenan may have in the future with Darlene Zachariasz or Brunon Zachariasz. 119 Colin Greenan’s relationship with members of the opposite sex has also been unsettled. His relationship with Kristine Johns has been volatile. They separated in May, 2007. Since that time their relationship has ranged from good, bad to indifferent. At times Colin’s relationship with Kristine was good enough that she could supervise his access with Jo- seph and William at her home. At times, the relationship between Colin and Kristine was not so good and Mr. Greenan’s access was exercised at the supervised access facility. It would be impossible to predict in the future how the relationship between Colin Greenan and Kristine Johns would be at any point in time, which makes it highly dangerous to have Kristine Johns supervise the access Colin Greenan has to Joseph and William if his access is to continue to be supervised. 120 Although likely understated, Colin Greenan correctly described the relationship between all the parties in this litigation as “pretty complicated”. 121 Colin Greenan has had a volatile relationship with others, such as Kara Lewis. Mr. Greenan’s relationship with Ms. Lewis led him to be involved in the criminal courts. The offence record report entered as Ex- hibit 16 indicates that Mr. Greenan was involved in an offence on Sep- tember 15, 2010 of criminal harassment for which he received a sentence of one day time served and 12 months’ probation; an offence on Septem- ber 16 2010 of assault for which he received a sentence of one day time served and 12 months’ probation along with a five-year firearms prohibi- tion; and an offence on March 23, 2011 of breaching a probation order, for which he received a suspended sentence and one year probation. This criminal activity all related to Kara Lewis. 122 Entered as Exhibit 17 was the crown brief synopsis related to the Sep- tember, 2010 events involving Kara Lewis. The crown synopsis reads as follows: On the 14th of September, 2010, the acused, Colin Greenan, made 93 phone calls to the victim, Kara Lewis. The victim, Kara Lewis, informed him not to call her anymore after the first couple of phone calls. The accused, Colin Greenan, then waited outside the victim’s place of work, Charm’s Diamond Center, 293 Bay Street, Station 414 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

Mall. He waited in the parking lot and he confronted her. The victim, Kara Lewis, got in her car and attempted to drive away and he was able to get into the passenger seat. He started yelling at her. The accused when assaulted Kara Lewis by striking her with a backhand in the mouth twice with his left hand and then turning and striking her two to three times with his right hand by slapping her again. He also placed his hand around her throat in an attempt to choke her. On the 14 Sep 10 the accused Colin Greenan phoned the victim Kara Lewis 93 times. These phone calls were unwanted. The accused also on the same date attended in the parking lot of 293 Bay Street and waited for Kara to leave work. Accused confronted Kara in parking lot. Kara got in her car and accused go in passenger seat. Accused yelled at Kara and then assaulted her by slapping her in the face numerous times. Accused could not be located on the offence date and SIP warrant completed. On 16 Sep 10 at 0323 hours accused was arrested in lobby of station, read RTC and caution. Accused booked in by A/S/Sgt Rowe. Accused called lawyer — no answer. Accused placed in cells. In his evidence at trial, Colin Greenan testified that he plead guilty to the charges with the caveat “just because I plead guilty it doesn’t mean I agree with everything that is in here.” referring to the crown synopsis entered as Exhibit 17. 123 There were further incidents involving Kara Lewis as reported in the Sault Star on November 9, 2012. Entered as Exhibit 18 is the newspaper article from the Sault Star on November 9, 2012 which reads as follows: Colin Greenan continued to bother his ex-girlfriend after their breakup, a judge heard Thursday. He made harassing phone calls, repeatedly texted the woman, showed up at her residence and constantly bothered her at work. Greenan, 30, pleaded guilty to criminal harassment in connection with his behaviour between Feb. 1, 2011 and April 29 of this year. He also was convicted of three counts of breach of probation — for failing to keep the peace, not attending a court-ordered domestic violence program and not reporting to his probation officer. Ontario Court Justice Melanie Dunn sentence him to a 90-day inter- mittent sentence, which he will serve on weekends. As well, she placed Greenan on probation for two years with conditions designed to keep him away from the victim. Dunn also ordered him to attend and complete the Partner Assault Response Program. Greenan v. Johns E. Gareau J. 415

The court heard the complainant contacted police in April after the accused indicated he was coming over to her workplace, prosecutor Benoit Renaud said. Police had warned him in the past month to leave her alone, the assistant Crown attorney said. When the woman spoke with a officer she detailed further unwanted conduct that had occurred over the last several months, he said. Renaud said there were times when the woman received more than 20 text messages a day from Greenan. The phone calls came at any time of day and night. She had his number blocked from her telephone, but he would call from other people’s phones. When she was employed at a local mall, he “constantly walked” by the business, Renaud said. 124 Colin Greenan’s dysfunctional relationship with Kara Lewis also led Mr. Greenan to be hospitalized. On March 10, 2009, Mr. Greenan was admitted to the hospital after an apparent overdose of Tylenol pills. After he was stabilized at the Sault Hospital, he was admitted to the Riverview Facility for observation. According to the evidence of Colin Greenan, he was consuming alcohol and drugs, including cocaine and ecstasy. Colin described himself as “emotionally unstable”. He could not get a hold of Kara Lewis which was upsetting to him. He was awake all night and took some Tylenol pills in an effort to “fake a suicide” to scare and upset Kara Lewis. He punched a wall causing damage to his hand. Kristine Johns contacted Darlene Zachariasz and both Ms. Johns and Ms. Zachariasz took Colin to the hospital. The Children’s Aid Society of Algoma was notified. The Society’s file summary is located on page 1 of Exhibit 3, Tab 1. The summary reads as follows: March 12, 2009: Community Link On March 11, 2009, a nurse from Sault Area Hospitals Riverview Center contacted the Society to report information regarding the father, Colin Greenan. The nurse reported that the father, Colin had been admitted to Riverview on March 10, 2009 due to an attempt to harm himself. The father, Colin and his ex-partner, Kristine Johns, had two children together. The father, Colin and the mother, Kristine, had separated and maintained separate residences at that time. The nurse spoke to the mother, Kristine Johns and the paternal grandmother, Darlene Zachariasz. It was reported that the father, Colin had a history of violence and also had a problem with anger management. The father, Colin had hit the paternal grandmother in the past and 416 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

had been physically abusive towards the mother, Kristine, by pulling her hair and pushing her. The mother, Kristine, reported that the father, Colin had used drugs and drank daily. The Society’s Intake Worker contacted the mother, Kristine Johns directly and she reported that she and the father, Colin had joint custody of the children, Joseph and William and that the father, Colin had access every second weekend. The mother, Kristine had not been allowing the children to go to the father, Colin’s apartment as she did not believe that it was suitable for the children. As a result, the father, Colin had been having access visits with the children at the mother, Kristine’s home. The mother, Kristine, stated that the father, Colin had been having problems with a girl that he had been involved with. The father, Colin came to her house after punching the wall at his apartment. The mother, Kristine had allowed the father to spend the night at her house. The next morning, he was crying and upset and he went into the bathroom and started to take a number of extra strength Tylenol. The mother, Kristine and the paternal grandmother were able to get the father, Colin to go to the hospital where he was admitted on a 72- hour hold. At that time, the mother, Kristine indicated that she planned to contact a lawyer for direction about changing the custody order to supervised access for the father, Colin. The file was not opened at that time as the mother, Kristine appeared able to adequately protect the children from harm and agreed to contact the Society should she have concerns about the safety of her children in the presence of the father, Colin. 125 Filed as Exhibit 23 is the Sault Area Hospital records pertaining to Colin Greenan’s attendance at the hospital on March 10, 2009. Mr. Gree- nan was admitted to the hospital on March 11, 2009 and discharged from the hospital the following day, March 12, 2009. The psychiatric discharge summary prepared by Dr. Anna Rogers states the following under the heading “History of Presenting Illness”: Colin is a 26 year old male who overdosed while intoxicated and arguing with his girlfriend. He described the overdose as minimal and the plan was to upset his girlfriend and not actually inflict himself harm. He told them in Emerg that he had taken 20 tablets of Tylenol but told me he actually took 10. He also said that he had been using Cocaine and Ecstasy prior to the admission. He felt that he had significant issues with anger management and also feels he needs AA. He had actually punched a stucco wall the Monday night Greenan v. Johns E. Gareau J. 417

prior to his admission and had to have an x-ray done of his hand in the Emergency Department, which was negative. He did tell them in the Emerg that he drinks daily, although when I spoke to him he would only admit to drinking once per week. He was on no medications on admission. He had no drug allergies. Medical history is healthy, no history of surgeries, no head injury, no history of seizures and he has a previous fracture of the humerus of his left arm. 126 In the psychiatric admission note of Janet Arnold, RN, as part of Ex- hibit 23, under the section titled “Impression” it reads, “It seems that Colin is having a lot of issues of behaviour which is usually related to his consumption of alcohol. He is also using all sorts of narcotics. He has had a childhood exposure to a lot of anger with his paternal dad.” 127 At the time of this incident on March 10, 2009, Colin Greenan was having access with Joseph and William on an alternate weekend basis. The incident which resulted in Mr. Greenan’s hospitalization led to the supervised access order granted on May 29, 2009 by McMillan, J. 128 At the trial of this matter, Colin Greenan presented himself as a man who had achieved a degree of stability in his life. He pointed to his relationship with his young daughter, Ava and his relationship with his new partner Amanda Gardner as evidence of this. Amanda Gardner testified at the trial. Amanda described that Colin and Ava had a strong bond. Amanda Gardner testified that she and Colin Greenan had been involved in a relationship since August, 2011. They began to live together in Janu- ary, 2012 but in later January, 2012 they separated and had no contact with each other for approximately three months. Colin Greenan did not reside again with Amanda Gardner until he was released from custody on May 8, 2012 after one of the Kara Lewis episodes. Ava was born the following day, May 9, 2012. In April, 2013, Amanda and Colin separated again. As Amanda put it in her evidence, “he had a lot to deal with.” Colin and Amanda reconciled in the summer of 2013. Colin Greenan and Amanda Gardner had difficulties again on December 1, 2014. Amanda Gardner testified that she was on the computer and she had issues about privacy and Mr. Greenan had issues about trust. They got into a heated argument and Amanda asked Colin to leave. According to Ms. Gardner’s evidence, she asked Colin to leave and “he made a comment about ending everything.” Amanda got her mother, Laurie Gardner, and they got Colin to come out of the bathroom. When Colin came out of the bathroom, he had “a small kitchen knife” according to Amanda Gardner which he used to cut the television cord on the television that was n the downstairs recreation room. Amanda Gardner indicated that Colin Gree- 418 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

nan packed and left the home returning a couple of days later after they had worked matters out between them. Amanda Gardner testified that she notified the police about the incident. 129 Laurie Gardner, Amanda’s mother, testified. As to the December 1, 2014 incident, it was the evidence of Laurie Gardner that she was in the basement of the home when she heard voices raised upstairs. Her daughter, Amanda, came to the basement and asked her to come upstairs because Colin had locked himself in the bathroom and said “he was ending it.” Laurie Gardner knocked on the door and asked Colin to come out of the bathroom or that she would call the police. Colin came out of the bathroom right away. Colin grabbed his backpack and tossed a “small knife” on the floor and left the home. 130 Colin Greenan’s version as to what happened on December 1, 2014 was that he and Amanda Gardner got into an argument. He was upset and crying. He grabbed scissors to cut the cord on the television. He said that he was “ending it” which Colin explained to mean he was ending the relationship. Colin described himself as “really upset” almost saying “unstable” before correcting himself. The police were called and Colin was taken to the Sault Area Hospital where he was kept for 24 hours and then released. Colin indicated in his testimony that he thought that Amanda was talking to some guyon the computer. Colin testified “I was getting more worked up.” And “I was worried it might be over.” Colin also indicated in his evidence that “I didn’t want her to have my T.V.”, which is why he cut the cord on the television set before leaving the home. Colin testified that the police came to his friend’s home and took Colin to the hospital because “Amanda was concerned that I may harm myself because she knew about the Kara incident.” 131 The Sault Ste. Marie Police occurrence summary dated December 1, 2014 was entered as Exhibit 71. Amanda Gardner is identified as the complainant. The summary section that has not been redacted reads as follows: Broke up with boyfriend Colin Greenan last night he went into the bathroom with a knife and was there for approximately 10-15 minutes. He then left the residence on foot. Complainant is concerned for his wellbeing. He does not have a cell phone. He lives somewhere on Walnut Street but she does not have the civic. He does not have a vehicle. Greenan v. Johns E. Gareau J. 419

132 On the arrest report entered as Exhibit 71, the following comments were made by the arresting officer, D. King, read as follows: “Advised by girlfriend that they had a fight last night. Colin grabbed knife said he was going to end it all and went into the bathroom. Later came out and cut TV cord. Call mother today and said he wanted to hurt himself but wouldn’t because of the children.” Officer’s Observations: Overly suspicious/paranoid; acted hostile; argumentative; spoke rapidly; spoke of hurting self. Colin extremely argumentative and defensive. Blames other people for him feeling the way he does.” 133 Colin Greenan gave his evidence as part of his case on January 12 to 15, 2015. Amanda Gardner and Laurie Gardner testified on January 16, 2015. Colin Greenan testified in reply on April 7, 2015. In his reply evidence, Colin Greenan indicated to the court that he was no longer in a relationship with Amanda Gardner. Colin testified that they ended their relationship about one month prior, in early March, 2015. Colin indicated that he was living at 228 Walnut Street, Sault Ste. Marie, Ontario which is a residence he retained while living with Amanda Gardner due to the “chaotic relationship” with Amanda. Colin Greenan testified that he was seeing his daughter Ava without difficulty and bringing Ava to his brother Andrew’s or his parents due to the cramped space in his apartment. 134 I must say that I found Amanda Gardner to be a good witness. She was courteous and direct in her answers. I did not get a sense that she was exaggerated or embellished in the answers she gave under oath. I also found Amada Gardner to be extremely committed to her four children, Joshua, Sya, Jarek and Ava. I would have been satisfied that Amanda Gardner could have assisted Colin Greenan in the care of Jo- seph and William to enable some of the existing restrictions in his contact to be lessened. 135 The report of the Office of the Children’s Lawyer dated May 24 2011 prepared by Jeannine Denis recommended that Colin Greenan have supervised access to Joseph and William every second weekend on Satur- days and Sundays. The report of Ms. Denis recommended that “Colin Greenan would get an intensive assessment and treatment for drug and alcohol use that would include a hair follicle test.”, with the recommendation that “the access for Colin Greenan would be re-evaluated following assessment and treatment.” This intensive assessment and treatment 420 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

for drug and alcohol use recommended by the Office of the Children’s Lawyer was not completed by Mr. Greenan. 136 In Exhibit 3 at Tab 1, there is a report dated May 24, 2011 prepared by the Children’s Aid Society of Algoma caseworker Suzanne Olson. On page 5 of that report, there is a list of tasks set for Colin Greenan to perform with the desired outcome being stated as “The father, Colin, will address his anger management issues, mental health issues and substance abuse issues.” As to the “outcome tasks” developed in the report, Colin Greenan testified that “I didn’t follow up at all. I didn’t even agree with it.” 137 Suzanne Olson testified about the aforementioned report. Ms. Olson testified that Colin Greenan wanted to move to an unsupervised access scheme. She testified that the “desired outcome” section of her report identified issues that Colin Greenan was working through As to the “outcome tasks” section of the report, Ms. Olson indicated that these were goals that Colin Greenan indicated he wanted to do; goals that he wanted to work through. Ms. Olson identified the first document at Exhibit 3, Tb 1, titled “Ongoing service - first month” as a plan of service for ongoing services that was not a signed document and not a document that Colin Greenan would have had to sign or would have had to consent to. Su- zanne Olson was clear and definite in her evidence that the “ongoing services - first month” document, the first document in Exhibit 3, Tab 1, was not an agreement between the parties to move Colin Greenan’s access from supervised access to unsupervised access. In other words, the tasks identified on page 5 of the report were not things that Colin Gree- nan had to do for the Children’s Aid Society of Algoma or Kristine Johns to be satisfied that it was appropriate for Colin Greenan to have unsupervised access to Joseph and William. Ms. Olson was unequivocal in her evidence that this was never the purpose of the document or the intention of the parties with respect to the agreement. The purpose of the document is for recording and to comply with standards set for the Soci- ety by the Ministry of Community and Social Services. 138 Despite the fact that Suzanne Olson was a witness called by Kristine Johns, the evidence given by Suzanne Olson with respect to the aforementioned document was completely different than the evidence given by Kristine Johns. Ms. Johns testified before Ms. Olson and indicated in her evidence that the document was for the sole purpose of getting Colin Greenan to do tasks required for him to move from supervised to unsupervised access with respect to Joseph and William. Ms. Johns justi- Greenan v. Johns E. Gareau J. 421

fied her denial to provide unsupervised access to Mr. Greenan on the basis that he had not completed all of the tasks identified on page 5 of the Children’s Aid Society of Algoma document at Exhibit 3, Tab 1. The evidence of Ms. Johns cannot be reconciled with the evidence of Ms. Olson on this point and this has a direct impact on the assessment of the credibility of Kristine Johns and the believability of her evidence. 139 Exhibit 51 is an affidavit of Kristine Johns sworn on December 17, 2013. Paragraph 7 of that affidavit reads as follows: In response to the affidavit dated September 9, 2013 paragraph 2, I did not state that there was an open file against Darlene and Bruno Zachariasz. I did say that I had an open file with the Children’s Aid Society in the process of being closed at that time due to Darlene Zachariasz constantly making false accusations to CAS. I was advised by the worker that CAS agrees with my decision for Darlene and Brunon Zachariasz to be supervised. I feel this is another litigation means for Darlene to harass me and breach her conditions. The case worker assigned to this case was Ms. Ami Cerenzia. This paragraph in Ms. Johns’ affidavit was put directly to Ami Cerenzia in cross-examination. Ms. Cerenzia testified that she never told Kristine Johns that the access of Brunon Zachariasz and Darlene Zachariasz should be supervised. That is in direct contradiction to paragraph 7 of the affidavit which reads “I was advised by the worker that CAS agrees with my decision for Darlene and Brunon Zachariasz to be supervised.” 140 Paragraph 8 of Exhibit 51 reads as follows: Near the end of this investigation, after my expressing a large portion of my concerns in relation to Darlene Zachariasz and based on our visit, Ms. Cerenzia felt that the informtion that I had provided was more of a concern about Darlene Zachariasz being of harm to Joseph and William than the accusations against me and my family. She then suggested she would attempt to gain insight and clarity from Darlene Zachariasz’s perspective by stopping by to visit her and hoped to find a means to resolve issue among the adults. I wished Ms. Cerenzia luck in regards to her suggestion and admittedly did not believe that her visit with Mrs. Zachariasz would go over well at all, as that not only myself, but other people have attempted to discuss issues in a clam rational manner with Darlene Zachariasz and have failed at achieving resolution. This paragraph was put directly to Ms. Cerenzia in cross-examination. Ms. Cerenzia testified that she never told Kristine Johns that Darlene Zachariasz would do harm to the boys. It appears that paragraph 8 of the 422 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

affidavit of Kristine Johns is incorrect when it reads “Ms. Cerenzia felt that the information I had provided was more of a concern about Darlene Zachariasz being of harm to Joseph and William than the accusation against me and my family.” 141 Paragraph 9 of the affidavit of Kristine Johns sworn on December 17, 2013 entered as Exhibit 51 reads as follows: I was later informed that the visit between Ami Cerenzia and Darlene Zachariasz in fact had not gone well at all and a complaint was filed against Ms. Cerenzia and her supervisor had to get involved. I was informed that the inability to calmly and rationally discuss and resolve conflict with Darlene Zachariasz was recognized. CAS have not found any concerns of my care or for the safety and well being of my children. This is not how Ami Cerenzia reported her meeting with Darlene Zachariasz when she gave her evidence to the court. Ms. Johns’ allegation in paragraph 9 that “I was informed that the inability to calmly and rationally discuss and resolve conflict with Darlene Zachariasz was recognized” does not square at all with the evidence given by Ami Cerenzia at the trial. 142 In her evidence, Ami Cerenzia testified that when she interviewed Jo- seph on May 1, 2013 that Joseph said to her “Mom says that Nana is sick in the head.” Ms. Cerenzia recognized that this was an inappropriate comment for Ms. Johns to have made to Joseph and spoke to Ms. Johns about it. The explanation that Kristine Johns provided to Ami Cerenzia was that as a result of her own physical ailments and Colleen McCabe’s partner dying of cancer, that she told Joseph that Mrs. Zachariasz’s sick- ness was in her head so that Joseph didn’t think she was dying. Ms. Cer- enzia indicated in her evidence that, “I was satisfied with that explanation from mom.” While Ms. Cerenzia may be satisfied with that explanation, I am not. I find the explanation of Ms. Johns to be a weak attempt to justify a statement made to Joseph that should not have been made in the first place. To describe to Joseph that his grandmother is “sick in the head” in the context of animosity between the parties is an inappropriate attempt to denigrate and belittle Darlene Zachariasz in the eyes of her grandson, Joseph. 143 Sergeant Karen Bell, an officer with the Anishnabek Police Services in Garden River, Ontario, testified as part of the case of Kristine Johns. The purpose of Ms. Bell’s testimony was to go through the warnings given by the police about the numerous telephone calls made by Darlene Greenan v. Johns E. Gareau J. 423

Zachariasz to Kristine Johns leading up to the criminal charge of harassment laid against Mrs. Zachariasz on December 8, 2010 and the subsequent breach of the peace bond by Mrs. Zachariasz on May 2, 2012 which lead to the charge of failing to comply with a recognisance contrary to s. 145(3) of the Criminal Code of Canada. 144 In the course of her evidence, paragraph 16 of an affidavit sworn by Kristine Johns on September 16, 2014, and entered as Exhibit 66 was put to Sergeant Karen Bell. The pertinent portion of paragraph 16 is “This lead the police officer, Sergeant Bell, to believe Darlene had other arrangements, or an agreement of sorts with Inspector Lesage. Sergeant Bell informed me that she talked to Inspector Lesage, and he had not met the Zachariasz or talked to them and did not know who they were. There is a report filed about this.” Sergeant Karen Bell testified that she had no recollection of any sort of conversation such as this taking place with Kristine Johns. Sergeant Bell was very exact in her testimony and had detailed notes surrounding her involvement with Kristine Johns and the Zachariaszes. It is highly unlikely that Sergeant Bell would not remember this conversation or have a note about it if in fact the conversation did occur as Kristine Johns claims. 145 I raise these concerns to indicate that I have difficulty accepting the evidence given by Kristine Johns with respect to portions of the evidence given at trial. For example, when it comes to Ms. Johns’ recollection of the times that Colin Greenan or the Zachariaszes spent with Joseph and William, I prefer their evidence to the evidence of Kristine Johns. This is especially so with respect to the evidence of Darlene Zachariasz and Bru- non Zachariasz, given the fact that they were very exact and detailed in their evidence. Ms. Johns testified in generalities as to access times without specifics, notes or calendars to assist her with specifics. 146 As to times that Colin Greenan spent with Joseph and William, since May, 2007, the evidence is very clear and consistent that except for the week-about period between May, 2007 and May, 2008, Mr. Greenan’s commitment to seeing Joseph and William has not been sustained. There have been large gaps in time when he has not seen his sons, even at the supervised access facility where a definite schedule could have been set up well in advance. 147 The evidence is also very clear that Colin Greenan loves Joseph and William and that Joseph and William love their father. Kristine Johns freely admits this is the case. The difficulty is that Mr. Greenan has not displayed the commitment to Joseph and William that one would expect 424 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

if the children were the first priority in his life. It is likely not surprising that Colin Greenan has been unable to make his sons the primary focus in his life given the numerous difficulties he has encountered including failed relationships, criminal activity and the use of drugs such as marijuana, cocaine and ecstasy. The simple fact of the matter is that Colin Greenan’s life is still unsettled. Mr. Greenan has had the opportunity over the last eight years to get his life on track, but the evidence does not indicate that he has succeeded in doing that. 148 Having said that, I have not lost sight of the fact that the primary focus on any inquiry of what kind of access is appropriate is Joseph and William. The children are the focus. Section 24(1) of the Children’s Law Reform Act makes that clear. That section reads as follows: The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsection (2), (3), and (4). 149 In considering the factors set out in Section 24(2), on the totality of the evidence presented at the trial, I cannot conclude that it is in Joseph and William’s best interest to have unsupervised access with their father, Colin Greenan. It is in their best interest to see their father, to have access with him, but that access should be in a supervised access setting. Colin Greenan has not yet achieved the stability or emotional maturity to make unsupervised visits for Joseph and William appropriate. 150 For the aforementioned reasons, the application by Colin Greenan for unsupervised access is dismissed. Mr. Greenan’s visits with Joseph and William will be supervised with the details set out in the “conclusion” section of these reasons.

(c) Mobility — the Claim by Colin Greenan that the Residency of Joseph and William be Returned to the Sault Ste. Marie Area from Windsor, Ontario 151 In his motion to change dated January 13, 2014, the moving party, Colin Greenan, seeks a non-removal order that the respondent mother be prohibited from changing the children’s residence from Garden River or Sault Ste. Marie without the consent of the father. 152 Kristine Johns has in fact changed the residence of Joseph and Wil- liam from Garden River, Ontario to Windsor, Ontario in March, 2014. Ms. Johns was permitted to do this by a final order granted on December 4, 2012 by the Honourable Mr. Justice M.G. Ellies. That order was on consent, granted in accordance with minutes of settlement. A copy of the Greenan v. Johns E. Gareau J. 425

handwritten minutes of settlement were entered as Exhibit 19. The minutes of settlement are signed by Darlene Zachariasz, Brunon Zachariasz, Kristine Johns and Colin Greenan. 153 Paragraph 3 of the order of December 4, 2012 reads as follows: The respondent, Kristine Johns, intends to move to Windsor after June 30, 2013 and the applicants will not object to this move and the parties will re-visit the issue of access and come to a further agreement, as the circumstances may dictate. Failing such agreement, any of the parties may apply to the court for direction and an order for access. 154 The move by Kristine Johns with Joseph and William to Windsor, Ontario as permitted by paragraph 3(c) of the December 4, 2012 order was delayed until March, 2014 due to Ms. Johns being diagnosed with thyroid cancer and the difficult treatment she had to endure as a result of having that disease. 155 Kristine Johns takes the position that Colin Greenan, along with the paternal grandparents, consented to her moving the boys to Windsor as he executed the minutes of settlement and did not raise any objection to it at the time the minutes of settlement were filed with the court and the order was made. Colin Greenan rejects that view and takes the position that he was not an applicant in the proceeding. The minutes of settlement and the court order make it clear that “the applicants will not object to this move.” Meaning the Zachariaszes and not him. 156 The minutes of settlement clearly identifies Colin Greenan as being a respondent in the court application. That is also true of the court order granted on December 4, 2012. Although it is true that Brunon Zachariasz, Darlene Zachariasz and Colin Greenan were all a united front on the same team when the matter was resolved, the literal wording of the court order cannot be ignored. Mr. Greenan did not have counsel at the time and it is entirely reasonable for him to believe he was not an applicant and therefore not consenting to his children moving to Windsor given the way the title of proceeding in both the minutes of settlement and court order is structured. 157 On all of the evidence, I am not satisfied that Colin Greenan consented to the move to Windsor. Having said that, Mr. Greenan was ineffective in preventing it from happening. Joseph and William were allowed to move to Windsor in March, 2014 without any interlocutory proceedings brought by Mr. Greenan to prevent it. With the move, the 426 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

horse is out of the barn and the horse has been out of the barn for 18 months. 158 The evidence called at the trial indicates clearly that Joseph and Wil- liam are well-settled in Windsor, Ontario and have developed rhythms and routines in their life in Windsor. Joseph is going into Grade 6 and William is going into Grade 3. The school that the children attend, East- wood Public School, is a three to four-minute walk from their home. Ms. Johns and Joseph and William reside at 7416 Alton Drive in Winsor, which is a three-bedroom townhouse with a finished basement. Ms. Johns reports that Joseph is progressing very well at school and is in fact doing better in school than he was in Sault Ste. Marie, Ontario. Joseph has unique challenges with learning and may be developmentally delayed. Ms. Johns has arranged for a children’s center in Windsor to test and monitor Joseph and this process was still going on by the time the trial concluded in April, 2015. 159 Kristine Johns has a connection to Windsor, Ontario in that her mother’s common-law partner, Mel Catling, had resided in Windsor previously and had family in Windsor. It was Mr. Catling who got Kristine Johns interested in attending school at St. Clair College in Windsor. Ms. Johns is currently enrolled in and applying herself to a three-year child and youth program at St. Clair College in Windsor. Ms. Johns indicated in her evidence that St. Clair College has a protocol with the University of Windsor whereby she can complete her program at St. Clair College and then go on to the University of Windsor for a social work program. It is the plan of Kristine Johns that she complete her current program at St. Clair College in 2018 and then go on to the Masters program at the Uni- versity of Windsor. These plans will keep Kristine Johns and Joseph and William in Windsor, Ontario for the foreseeable future. The reality is that the only way that Ms. Johns can become economically self-sufficient benefitting herself and Joseph and William is for her to pursue her plans for post-secondary education. St. Clair College offers a viable program to be able to be linked to the University of Windsor enabling Ms. Johns to secure a graduate degree from an accredited university. 160 The essential question is whether the benefits to Joseph and William in remaining in Windsor, Ontario outweigh the detrimental effects. I am of the view that it is more beneficial for Joseph and William to continue with a move they have adjusted to than to require them to make another move back to the Sault Ste. Marie area. Given the dynamics in this case, Greenan v. Johns E. Gareau J. 427

it makes a great deal of sense for there to be a distance between the adult parties. 161 In reviewing all of the evidence, I am not persuaded that the children should be required to move from Windsor, Ontario back to the Sault Ste. Marie area. In so deciding, I have considered the principles set out by the Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.) which have been summarized in subsequent case law as follows: (1) The judge must embark on a fresh inquiry into what is in the best interest of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them. (2) The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect and the most serious consideration. (3) Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case. (4) The focus is on the best interests of the child, not the interest or rights of the parents. (5) More particularly, the judge should consider, inter alia: (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; (c) the desirability of maximizing contact between the child and both parents; (d) the view of the child; (e) the custodial parent’s reasons for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; (f) the disruption to the child of a change in custody; and (g) the disruption to the child consequent on removal from family, schools, and the community he has come to know. 162 In considering the aforementioned factors, I am of the view that the best interest of Joseph and William require them to be in the continued custody and care of their mother, Kristine Johns, in Windsor, Ontario. 428 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

163 Accordingly, the request of Colin Greenan that the children be required to change their residence from Windsor, Ontario to the Sault Ste. Marie, Ontario area is dismissed.

Conclusion: 164 In conclusion, Brunon Zachariasz and Darlene Zachariasz are to have unsupervised access to Joseph Douglas Johns born December 17, 2004 and William James Johns born October 21, 2007. Colin Greenan’s access to Joseph and William shall continue to remain supervised. The residency of Joseph and William will continue to be in Windsor, Ontario with their mother, Kristine Johns, to have sole custody of them. A joint custody order is not in the best interest of Joseph and William given the acrimony between the parents, their inability to communicate effectively concerning the children and the on-again/off-again nature of their relationship. Kaplanis v. Kaplanis (2005), 10 R.F.L. (6th) 373 (Ont. C.A.); Johnson v. Cleroux (2002), 24 R.F.L. (5th) 422 (Ont. C.A.). 165 As to the details of the access, Brunon Zachariasz and Darlene Zachariasz shall have access to Joseph and William as follows: (a) In the year 2015: (i) on Thanksgiving weekend from Friday, October 9, 2015 at 5:00 p.m. to Thanksgiving Monday, October 12, 2015 at 7:00 p.m.; (ii) during the Christmas holidays from December 28, 2015 at 10:00 a.m. to December 31, 2015 at 10:00 a.m. (b) In the year 2016 and thereafter: (i) Easter weekend from Good Friday at 10:00 a.m. to Easter Monday at 7:00 p.m.; (ii) The holiday May weekend from Friday at 5:00 p.m. to Monday at 7:00 p.m.; (iii) From the second Monday in July at 2:00 p.m. to the third Monday in July at 2:00 p.m.; (iv) From the second Monday in August at 2:00 p.m. to the third Monday in August at 2:00 p.m.; (v) On Thanksgiving weekend from Friday at 5:00 p.m. to Thanksgiving Monday at 7:00 p.m.; Greenan v. Johns E. Gareau J. 429

(vi) During the Christmas holidays from December 28 at 10:00 a.m. to December 31 at 10:00 a.m. 166 As to the transportation for access, Kristine Johns is to deliver the children for access and pick up the children after access with Brunon Zachariasz and Darlene Zachariasz on the visits in July and the Christ- mas visit from December 28 to December 31. At all other times, Brunon Zachariasz and Darlene Zachariasz shall pick up Joseph and William at the residence of Kristine Johns in Windsor, Ontario and return the children to that residence after access has concluded. 167 There is currently an order for specified telephone access to Mr. and Mrs. Zachariasz. I am not prepared to make an order setting specific times for telephone access by Mr. and Mrs. Zachariasz with Joseph and William. The existing telephone access order has been a constant source of irritation between Mr. and Mrs. Zachariasz and Ms. Johns. In fact, that provision in the order has been the subject of motions for contempt alleging breaches and non-compliance. My goal is to eliminate sources of conflict between the parties. A court order for specific times of telephone access will do exactly the opposite. Joseph and William are old enough that they should be able to telephone their paternal grandparents when they want to. Kristine Johns is directed by the court to encourage Joseph and William to telephone Brunon Zachariasz and Darlene Zachariasz and to facilitate the telephone calls when Joseph and William wish to talk to their paternal grandparents. 168 As to the details of the access of Colin Greenan, he shall have supervised access as follows: (a) at the supervised access facility in Sault Ste. Marie, Ontario for one visit in July and one visit in August of each year to be arranged directly before or directly after the access exercised by Brunon and Darlene Zachariasz; (b) at the supervised access facility in Sault Ste. Marie, Ontario for one visit during the Christmas holidays of each year to be arranged directly before or directly after the Christmas holiday access to be exercised by Brunon Zachariasz and Darlene Zachariasz. (c) at any other times as may be agreed to by Colin Greenan and Kris- tine Johns either at the supervised access facility in Sault Ste. Marie, Ontario or at the supervised access facility in Windsor, On- tario or supervised by any third party approved by Kristine Johns. 430 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

(d) such reasonable telephone access agreed to by Colin Greenan and Kristine Johns.

Costs: 169 There is plenty of blame to go around in this case. Colin Greenan has not followed up on the recommendations made by the Office of the Chil- dren’s Lawyer and other social service agencies to overcome his difficulties, better his situation and put himself in a position where unsupervised access to his children is a viable option. Brunon Zachariasz and Darlene Zachariasz have at times blurred the lines between grandparents and parents. This is evident in the incessant reporting of even marginally suspicious events by Darlene Zachariasz to the Children’s Aid Society of Al- goma and in allowing the children gifts and treats in excessive amounts over the objections of the children’s mother. This must stop. The blurring of the lines might be inevitable given the fact that the children, especially Joseph, have spent so much time with them at their home and in their care, but Mr. and Mrs. Zachariasz have to recognize and respect their role as grandparents and the natural boundaries on them given that role. 170 Kristine Johns reported ongoing difficulties with the Zachariaszes and found an opportunity in late July, 2010 to restrict the involvement of Brunon Zachariasz and Darlene Zachariasz in the life of Joseph and Wil- liam, thereby making life easier for her. The response of Kristine Johns to whatever the comments were made to Joseph by Darlene Zachariasz was disproportionate and was more focused on punishing the Zachariaszes than on doing what was in the best interest of Joseph and William. This action by Kristine Johns revived the court application commenced by Brunon Zachariasz and Darlene Zachariasz which was eventually tried by the court. 171 Brunon Zachariasz and Darlene Zachariasz could make a case for costs against Kristine Johns because they succeeded in obtaining unsupervised access. Kristine Johns could make a case for costs against Colin Greenan because she succeeded in having Mr. Greenan’s access supervised and he did not succeed in his claim for unsupervised access. Kristine Johns is a student trying to better her life. She is the sole financial provider for Joseph and William. To order costs against Kristine Johns would punish Joseph and William and adversely affect them. I am not prepared to do that. Colin Greenan is without employment and any meaningful source of income. To order costs against him would be meaningless. At the end of the day, the only fair and just result on the Greenan v. Johns E. Gareau J. 431 issue of costs is an order that each party shall bear their own costs of this proceeding. It is so ordered. Father’s application dismissed; grandparents’ application granted. 432 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

[Indexed as: Stanbridge v. Stanbridge] Richard Andrew Stanbridge, Claimant and Sherry Lynn Stanbridge also known as Sherry Lynn Kegler, Respondent British Columbia Supreme Court Docket: Vancouver E131692 2015 BCSC 1468 Affleck J. Heard: June 29-30, 2015 Judgment: August 20, 2015 Family law –––– Domestic contracts and settlements — Validity — Formal validity — Formation of contract –––– Husband and wife began to cohabit in 2010 when wife moved into husband’s home — Husband had inherited home from his mother and it was valued at $1,225,000 when relationship began — Parties married in December 2010 — Relationship ended in February 2013 — Husband had no source of income other than Canada Pension Plan payments — He sold his home in 2011 and kept proceeds of sale of $1,537,000 — Wife had pension income of $70,000 per year — After husband sold his home, parties resided in wife’s condominium — Husband paid sum of $60,000 to wife to reduce her mortgage but she used money for other purposes — Wife sold condominium after separation for and kept proceeds of $30,000 — Wife applied for summary judgment seeking equal division of family property — Issue for determination was whether parties made binding agreement in January 2015 settling financial issues between them — Husband claimed that parties made binding agreement in 2015 such that no assets would be divided — Wife denied that agreement was reached and that if there was agreement, it should be set aside — Binding agreement was reached by parties in 2015 when husband accepted wife’s counteroffer — Precise date on which to obtain divorce order, or precise month during which agreement must be embodied in court order and divorce pronounced, was not fundamental to formation of contract — Conclusion was reached reviewing correspondence and email exchange between parties’ counsel — Reference by wife’s counsel to “possible settlement” did not indicate that settlement agreement was only possibility — Email was consistent with intended settlement conference at which court would be requested only to make consent order embodying terms of agreement that parties had already reached — Essence of agreement was that status quo in January 2015 prevailed — Each party would retain all assets, real and personal, in their name free and clear of any claims by other party — Given brief relationship, retention by wife of entire proceeds of sale from her condominium, absence of any financial contribution by her to value of Stanbridge v. Stanbridge Affleck J. 433

husband’s property, and decision of parties to agree to preserve status quo led to fair division of assets on separation. Cases considered by Affleck J.: Miglin v. Miglin (2003), 2003 SCC 24, 2003 CarswellOnt 1374, 2003 Carswell- Ont 1375, [2003] S.C.J. No. 21, 34 R.F.L. (5th) 255, 224 D.L.R. (4th) 193, 302 N.R. 201, 171 O.A.C. 201, [2003] 1 S.C.R. 303, REJB 2003-40012, 66 O.R. (3d) 736, 2003 CSC 24 (S.C.C.) — considered Reid v. Reid (2011), 2011 BCSC 231, 2011 CarswellBC 357, [2011] B.C.J. No. 298 (B.C. S.C.) — considered Remmem v. Remmem (2014), 2014 BCSC 1552, 2014 CarswellBC 2447 (B.C. S.C.) — considered Rick v. Brandsema (2009), 2009 SCC 10, 2009 CarswellBC 342, 2009 Car- swellBC 343, [2009] S.C.J. No. 10, [2009] A.C.S. No. 10, 62 R.F.L. (6th) 239, (sub nom. N.R. v. B.B.) 385 N.R. 85, [2009] 5 W.W.R. 191, 303 D.L.R. (4th) 193, 90 B.C.L.R. (4th) 1, 266 B.C.A.C. 1, 449 W.A.C. 1, [2009] 1 S.C.R. 295 (S.C.C.) — considered S. (H.J.) v. S. (K.C.) (2013), 2013 BCSC 998, 2013 CarswellBC 1698 (B.C. S.C.) — considered Williams v. Killey (2014), 2014 BCSC 1846, 2014 CarswellBC 2903, 52 R.F.L. (7th) 213, 71 B.C.L.R. (5th) 414 (B.C. S.C.) — considered Statutes considered: Family Law Act, S.B.C. 2011, c. 25 Generally — referred to Pt. 2 — referred to s. 93 — considered s. 95 — considered Family Relations Act, R.S.B.C. 1996, c. 128 Generally — referred to Name Act, R.S.B.C. 1996, c. 328 Generally — referred to

DETERMINATION of whether parties made binding agreement settling all financial issues between them.

R.W. Mostar, C.R. Rubinstein, for Claimant Z. Jimale, for Respondent

Affleck J.:

1 The parties began to cohabit in March 2010 when the respondent went to live with the claimant at his home on 27th Avenue in Surrey. The claimant is now 63 years old and the respondent 56. The parties married 434 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

on December 2, 2010. The relationship was fraught with difficulties and there were separations during which the respondent would return for a period of time to her condo on Merklin Street in White Rock. The parties separated permanently in April 2013. 2 The claimant had inherited his home on 27th Avenue from his mother. In this proceeding it has been appraised retroactively at the date on which the parties began to live together in March 2010 at $1,225,000. 3 The claimant had no source of income when the parties began to live together except for Canada pension plan payments. He decided to sell the 27th Avenue property to take advantage of a rising real estate market. In March 2011 he received net proceeds of sale after payment of the com- mission of $1,537,000. The increase in value over the one-year when the parties began to cohabit was $312,000. The claimant has kept the proceeds of sale. 4 The respondent while living for about a year with the claimant at the 27th Avenue property made no financial contribution to its upkeep. She is a retired member of the RCMP with an annual pension of about $70,000. 5 On selling the 27th Avenue property the claimant moved to the respondent’s home on Merklin Street. It was encumbered by a mortgage and in July 2011 the claimant gave the respondent $60,000, which he deposes was to be used to reduce the mortgage on the Merklin Street property. On the face of a cheque for $60,000 payable to the respondent the claimant wrote “part owner of condo”. The respondent does not deny that writing was on the cheque when she received it. 6 The claimant deposes that in return for the $60,000, and for further payments he made on the mortgage on the Merklin Street condo, “we would be equal owners of the Merklin Street property”. The claimant deposes however that, “through conversations” with the respondent, he learned that she had used one-half of the $60,000 to pay for her daughter’s education expenses and the “other $30,000 was spent on various sundries”. The respondent does not deny this evidence. Following the separation of the parties in April 2013, the Merklin Street property was sold by the respondent who received net proceeds somewhat in excess of $30,000 which she kept. 7 The respondent had made a down payment on the Merklin Street property of $30,000 at the time she had purchased it. The claimant submits that if the mortgage had been paid down using the $60,000 he had provided, the equity in the Merklin Street property at the time of the sale Stanbridge v. Stanbridge Affleck J. 435

would have been about $90,000, to which he would have been entitled to one half. 8 The present application is that of the respondent for the summary trial of the property issues. She seeks an equal division of family property including the increase in the value of the 27th Avenue property during the year prior to March 2011. There are also RRSPs owned by both parties. The claimant makes no claim against the respondent’s pension. An amended notice of application directed to those issues was filed on May 20, 2015. The parties appeared before me on May 25, 2015 for the hearing of that application. At that time, the claimant had recently retained his present counsel who applied on May 25 to adjourn the hearing of the summary trial. It was adjourned to June 29, 2015 and all application papers by the parties were to be filed by June 19. 9 Notwithstanding my direction that all application papers must be filed by June 19, the claimant did not file a notice of application seeking relief in any form. Instead, he filed an affidavit which focuses on the evidence regarding the purported settlement agreement. He relies on that affidavit as effective notice of his intention to seek the declaration referred to in the next paragraph of these reasons. 10 A threshold issue in this proceeding has been whether, as the claimant submits, the parties made a binding agreement in January 2015 settling all financial issues between them. When the respondent filed her amended notice of application on May 20, 2015, she included in Part 2 an application for an order “Pursuant to section 93 of the Family Law Act any agreements, found to be binding, between the parties respecting the division of family property and family debt, be set aside”. The respondent’s counsel advised me that the s. 93 order was requested in anticipation that the claimant would file a notice of application for a declaration that there is a binding agreement between the parties resolving the property issues. 11 The respondent’s initial position on the hearing of her summary trial application was that it should be heard without the participation of the claimant because of his failure to file a notice of application asserting the alleged agreement, and his failure to file an application response to the amended notice of application of the respondent. 12 After hearing submissions on those matters, the respondent accepted the claimant should be heard on the question of the settlement agreement. It is my view that the respondent has suffered no prejudice through the failure of the claimant to file a notice of application and application re- 436 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

sponse regarding the alleged settlement agreement. The respondent was not only aware that issue was likely to be argued on the summary trial application, she was also in a position to address that question based on the affidavits material which had been filed. I have thus heard the submissions of the parties on all issues. 13 I will consider first whether there is a binding agreement in respect of property issues and if there is, I will consider whether as the respondent suggests, it ought to be set aside pursuant to s. 93 of the Family Law Act, S.B.C. 2011, c. 25 on the basis that it was significantly unfair to the respondent and I will consider the effect, if any, on this application of s. 95 of the Act. 14 To establish the existence of an agreement the claimant refers to correspondence between his then counsel and the then counsel for the respondent. 15 On December 22, 2014, counsel for the claimant wrote to the respondent’s counsel as follows: My client wishes to initiate discussions at this time regarding the resolution of this matter. He has instructed me to put forward a proposal for settlement of the outstanding issues. As you are aware, our clients had a relatively short relationship of, at most, three years and have now been separated for over a year and half. The duration of the relationship is, of course, one of the factors to be taken into account when considering an unequal division of family property. The significant assets of both parties were acquired before their relationship began. Combined with the short relationship, it is my client’s view that there should be no division of assets. In other words, each party will retain those assets that he or she had prior to the marriage and not make a claim on any of the other party’s assets. Furthermore, my client maintains that, when all the assets are considered, neither party is owed any equalization. The property located at 13805 27th Avenue, Surrey, (“Surrey Home”) was inherited by my client from his mother in March 2002. When it sold on June 1, 2011, for $1,589,000 the money received by my client was deposited into his account and never into a joint account. My client does not deny that the Surrey Home increased in value between the date of marriage and the date of separation, although the value of the increase is still in dispute. However, this increase is off- Stanbridge v. Stanbridge Affleck J. 437

set by the decrease in his other assets as well as increased in your client’s assets. My client’s various investment accounts lost over $250,000 during the course of the parties’ marriage. They have, in fact, lost over $500,000 since inception. He has no pension and survives on Canada Pension Plan payments of $377 per month. Your client, on the other hand, retains significant RRSPs as well as her pension. She also retained her gardening business, although I understand it is no longer in operation. She has also retained all of the earnings of books she produced during the marriage. Moreover, your client also owned property that she had acquired before the relationship. She sold a condominium at 209 - 1576 Merklin St., White Rock (“White Rock Condo”) on November 2, 2012, for $264,000. My client gave her $60,000 on July 15, 2011, with the express purpose that it would be put towards the White Rock Condo mortgage. My client gave your client this money on the understand that he would thereby become a part owner of the White Rock Condo. My client later found out that at least half that amount was spent by your client on her children’s education. The remaining $30,000 was spent on miscellaneous expenses. None went towards the mortgage. In addition, he paid half her monthly mortgage for about 14 months, which totals around $11,000. He also paid over $3,375 for the floor renewal in the Condo. Your client is also a part owner of 932 Magic Lake, Pender Island. My client will make no claim to this property which he understands is owned jointly with your client’s mother. In light of all of the above, my client feels that that there should be no equalization of the property. Each party will retain those assets which he or she had when the relationship began or that he or she has since acquired that are in this or her sole name. 16 On January 12, 2015, counsel for the respondent wrote: We write in response to your letter dated December 22, 2014 and received by the writer on January 5, 2015. Our client proposes the following counter-offer: 1. Each party will retain any asset, real or personal, currently in their name as their property free and clear from any claim by the other; 2. Each party will retain any debt currently in their name and indemnify and save harmless the other party from any liability arising from same; 438 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

3. Ms. Williams [the respondent] will obtain her divorce at a Settlement Conference to be scheduled on either January 20, 23, 27, 28, February 2, 4 or 5 at the Van- couver Law Courts and Mr. Stanbridge will sign an Undertaking Not to Appeal, pursuant to Family Prac- tice Direction 11, paragraph 11, so that Ms. Williams can obtain her divorce immediately. 4. Other than Ms. Williams’ claim for divorce, the relief sought in the Notice of Family Claim and Counter- claim will be dismissed as if there had been a trial of the merits If this offer is accepted: 5. Each party will bear their own costs. [Emphasis in original.] 17 The claimant’s counsel wrote on January 14, 2015 as follows: We write in response to your letter dated January 12, 2015. My client accepts your offer with the following minor specifications: 1. Agreed, provided a Consent Order is entered to that effect. 2. Agreed, provided a Consent Order is entered to that effect. 3. Agreed. However, my client is not available for a Set- tlement Conference before February 16, 2015. Unfor- tunately, I am not available between February 13, 2015, and March 2, 2016. We would, therefore, request that the Settlement Conference be scheduled for any date in March other than March 6, 13, 20, and 27. 4. Agreed, provided a Consent Order is entered to that effect. 5. Agreed. 18 The respondent denies the correspondence evidences an agreement because term number three in her counsel’s letter dated January 12, 2015, was not unequivocally accepted by the claimant in the letter of January 14, 2015. The respondent submits her requirement that there be a settlement conference in January or February 2015, at which a divorce order would be pronounced, was fundamental to the agreement and time was of the essence. 19 I do not agree. A precise date on which to obtain a divorce order, or even a precise month during which the agreement must be embodied in a Stanbridge v. Stanbridge Affleck J. 439

court order and a divorce pronounced, was not fundamental to the formation of a contract. I reach that conclusion reviewing both the correspondence above and an email exchange on January 15, 2015 between the parties’ counsel, which followed the three letters quoted above. 20 The first email was from the respondent’s counsel. It reads: My client is very much hoping to have this matter resolved before Feb 15, 2015. After that, she is leaving for 6 months and won’t be back in BC until Fall 2015. If there is anyway your client can make himself available, that would be much appreciated as I don’t think these parties want this issue lingering any longer. 21 The second email is from the claimant’s counsel. It reads: My client, unfortunately, is not available until after February 16. He would also rather not wait for six months to resolve the issue and is wondering if there is any way your client could be available in March. 22 The third email is from the respondent’s counsel. It reads: I will check and get back to you. Could your client appear by phone? I know SCs require that the parties to be there in person but I think in this instance, we might be able to get around this rule. 23 The fourth email is from the claimant’s counsel. It reads: Thank you. Please also ask your client if she would be able to appear by phone if necessary. 24 The last email is from the respondent’s counsel. It reads: I can already tell you that she is adamant on being there in person. 25 I do not read the emails as an insistence by the respondent that time was of the essence except in a vague way. The understanding was only that the matter ought to be dealt with as soon as the parties and their counsel were available to appear before this Court. 26 On January 23, 2015, the respondent’s counsel sent a further email to the claimant’s counsel which reads: Do you have any update for me on whether your client can appear by phone at the Settlement Conference before Feb 15? The dates are going fast and it seems to me that this is a silly reason to hold-up a possible settlement. Can you please get back to me today? Thanks. 27 The respondent submits the phrase “possible settlement” indicates that the respondent viewed a settlement agreement as only a possibility. I do not agree with that understanding. The email is consistent with an intended settlement conference at which the court would be requested 440 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

only to make a consent order embodying the terms of the agreement the parties had already reached. 28 On February 26, 2015, the respondent, now representing herself, wrote to the claimant’s counsel to say: Please be advised that I will no longer engage in any negotiations outside of the Courts. Justice Savage at the Judicial Case Conference held on October 27, 2014 recommended that a one-day Summary Trial be booked as soon as possible. In keeping with this recommendation, I would like to book a one-day Summary Trial. The BC Supreme Court Schedulers have advised of the earliest available dates for a Summary Trial in April - April 28 and April 30, 2015. April 28 would be more suitable for me however I could be available April 30 if that works for you and your client. I look forward to hearing from you within five business days. If we cannot agree to a Summary Trial at this time, I will be making a motion for the Summary Trial in keeping with the recommendation of Justice Savage. 29 In further correspondence the respondent proposed a date for a summary trial but on March 13, 2015, the claimant’s counsel wrote to “apol- ogize for any misunderstanding that has arisen. Please be advised that my client has not consented to a one day summary trial”. A further letter was sent electronically by the claimant’s counsel to the respondent on March 19, 2015 which reads: My client is of the view that a settlement was reached in January 2015 on all outstanding issues. We are prepared to draw up consent orders pursuant to the terms agreed to and will forward them to you for your approval and signature. We are prepared to ensure that the orders are entered in court. If you fail to abide by the terms of the settlement, we will proceed to court seeking a declaration confirming the terms of the agreement. 30 The claimant’s position on the existence of a binding settlement agreement did not change in the following weeks. On April 8, 2015, he filed a notice of application for a declaration that a settlement agreement had been made by the parties. 31 In Reid v. Reid, 2011 BCSC 231 (B.C. S.C.) at paras. 25-28 Bernard J. described the formation of a settlement agreement on financial matters on the breakdown of a marriage as follows: [25] It is well-established that settlement agreements must meet the requirements of contractual formation: offer, acceptance, consideration and an intention to create legal obligations: S. (O.H.) v. S. (M.J.), Stanbridge v. Stanbridge Affleck J. 441

2004 BCSC 600, at para. 22; Jorgensen v. Jorgensen, [1996] B.C.J. No. 1153 (QL) (S.C.) aff’d (1998), 56 B.C.L.R. (3d) 124 (C.A.). [26] Settlement agreements made upon marriage breakdown, and for the purpose of resolving issues such as property division and spousal support, are generally referred to as “separation agreements”. While these agreements are subject to the requirements of contract formation, such are not applied with the same rigour in a matrimonial context. In this regard, our courts have recognized the need to achieve fairness as between the parties: Mitchell v. Mitchell, 2000 BCSC 1367, at para. 35. [27] In addition to the foregoing, for a settlement agreement to be enforceable there must be a “meeting of the minds” of the parties on the essential elements of the agreement: Fridman G.H.L., The Law of Contract in Canada, 5th ed. (Toronto: Carswell, 2006) at p. 14. The burden of proving consensus between the parties falls to the party seeking to prove the existence of the agreement,and the standard to be met is proof on a balance of probabilities: Bell v. Bell (1998), 80 A.C.W.S. (3d) 705 (B.C.S.C.). [28] In determining whether the parties were ad idem at the time of contract formation, the manifested intentions of the parties are considered. Generally, the courts apply an objective, rather than a sub- jective, test and consider whether a reasonable person in the situation of the party would have believed and understood that the other party was consenting to identical terms: Smith v. Hughes (1871), L.R. 6 Q.B. 597 at 607, adopted by the S.C.C. in St. John’s Tugboat Co. Ltd. v. Irving Refining Ltd., [1964] S.C.R. 614. The starting point for determining whether the parties were ad idem is the contract, itself; however, where it is unclear whether or not the parties have agreed, the court may resort to the evidence beyond the contractual language, including the circumstances in existence at the relevant time, the gen- esis and aim of the transaction, and the conduct of the parties during, and subsequent to, the purported making of the contract: Langley Lo- Cost Builders Ltd. v. 474835 B.C. Ltd., 2000 BCCA 365, at 18, and Aerovac Systems Ltd. v. Darwin Construction (Western) Ltd., 2010 BCSC 654, at 26. [Emphasis added.] 32 A binding agreement was reached by the parties on January 14, 2015 when the claimant accepted the respondent’s counteroffer. The essence of the agreement is that the status quo in January 2015 prevails. Thereaf- ter neither party could make a financial claim against the other. 442 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

33 The respondent’s amended notice of application makes reference to s. 93 of the Family Law Act. That section applies to a formal “written agreement respecting division of property and debt, with the signature of each spouse witnessed by at least one other person”. There is no agreement of that nature between the parties. Nevertheless there is an agreement even though it does not meet the criteria of s. 93. That section cannot govern the respondent’s application to set aside the agreement. 34 In S. (H.J.) v. S. (K.C.), 2013 BCSC 998 (B.C. S.C.), Barrow J. heard an application in which there was a formal signed separation agreement of the type contemplated by s. 93 of the Family Law Act. The claimant in that case applied to enforce the agreement and the respondent sought to have it set aside relying on s. 93. The proceedings had been commenced pursuant to the Family Relations Act, R.S.B.C., 1996 c. 128 and Barrow J. found the Family Law Act had no application. However Barrow J. found that s. 93 of the Family Law Act “is an attempt to codify the law developed by the Supreme Court of Canada in, among other cases, Miglin v. Miglin, 2003 SCC 24 (S.C.C.) and more recently, Rick v. Brandsema, 2009 SCC 10 (S.C.C.)”. 35 At paras. 40-43 of his reasons Barrow J. wrote the following: [40] In Miglin, the court was concerned with the effect of a prior separation agreement on a subsequent application for spousal support. Notwithstanding that specific context, the decision has application more generally to separation agreements. That was made clear by the court’s decision in Rick v. Brandsema at paragraph 39. Miglin established a two-stage analysis for the assessment of agreements in the context of spousal support. In the first stage “the court should first look to the circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount it” (Miglin at paragraph 80). This inquiry involves a consideration of both the circumstances surrounding the signing of the agreement and an examination of the degree to which the agreement complied with the applicable legislation. [41] The second stage of the Miglin analysis is a result of s. 15.2 of the Divorce Act. Section 65 of the Family Relations Act, if invoked, provides a basis for a second-stage analysis in relation to a separation agreement dealing with the division of property. It provides that if “the provisions for division of property between spouses under ... their marriage agreement ... would be unfair” having regard to various factors set out in the section, then, on application, the court can order a division different than the presumptive equal division or a reapportionment. The unfairness may lie in the agreement assessed as Stanbridge v. Stanbridge Affleck J. 443

of the time the agreement was drawn or in its subsequent operation (see generally D.K.N. v. M.J.O., 2003 BCCA 502). [42] There is no application in this case for a reapportionment of family assets. By his counterclaim, Mr. S seeks only an equal division of family assets. [43] In Rick v. Brandsema, the court dealt with the effect of a separation agreement that purported to divide family assets. It summarized some of the implications of Miglin at paragraphs 44 and 45: [44] Where, therefore, “there were any circumstances of oppression, pressure, or other vulnerabilities”, and if one party’s exploitation of such vulnerabilities during the negotiation process resulted in a separation agreement that deviated substantially from the legislation, the Court in Miglin concluded that the agreement need not be enforced ... [45] Notably, the Court also stressed the importance of respecting the “parties’ right to decide for themselves what constitutes for them, in the circumstances of their marriage, mutually acceptable equitable sharing” ... Par- ties should generally be free to decide for themselves what bargain they are prepared to make. ... [Emphasis added.] 36 In Remmem v. Remmem, 2014 BCSC 1552 (B.C. S.C.), Butler J. at para. 44 commented on the difference between the Family Relations Act and the Family Law Act in their treatment of the court’s discretion to order an unequal division the family property. Paragraph 44 of the reasons read: [44] The FLA provisions granting the court a discretion to order other than an equal division are very different from the provisions in the previous legislative scheme. Pursuant to s. 65(1) of the Family Rela- tions Act, R.S.B.C. 1996, c. 128 (the “FRA”), courts had a discretion to divide family property in unequal shares if the court found that the division of property (pursuant to agreement or the provisions of the FRA) would be unfair having regard to the factors set out in that section. The first and obvious difference between the discretion given under the FRA and the discretion given in Part 5 of the FLA is that in order to exercise the discretion, it is no longer sufficient to find that a division of property is merely “unfair”. There must be a finding that the division of property pursuant to the statutory scheme is “significantly” unfair. The Concise Oxford English Dictionary defines “significant” as “extensive or important enough to merit attention.” Sig- 444 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

nificantly is understood to mean more than a regular impact — something weighty, meaningful, or compelling. In other words, the legislature has raised the bar for a finding of unfairness to justify an unequal distribution. It is necessary to find that the unfairness is compelling or meaningful having regard to the factors set out in s. 95(2). 37 The respondent seeks an order that if there is an agreement between the parties it should be set aside and the family property divided “as determined by the court to be fair in the circumstances”.

The Circumstances that Led to the Agreement 38 The parties had a relatively brief relationship from March 2010 until April 2013. They did not always live together throughout those three years. They lived much of the time when they were together in the 27th Avenue home. It was valued at $1,225,000 when the relationship began and sold a year later for net proceeds of $1,537,000. That money is held on deposit by the claimant and generates an income for him. 39 The respondent owned the Merklin Street property and sold it for a net sum of $30,000. The claimant paid the respondent $60,000 to reduce the mortgage on the Merklin Street property, which I find he reasonably expected would entitle him to a financial interest in that property. The respondent did not use the $60,000 for its intended purpose and the claimant has received none of the proceeds of sale of that property. 40 The claimant has an income from the money he has invested and from the proceeds of sale of the 27th Avenue property. The respondent has an annual pension of $70,000. Both parties have RRSPs, which they each acquired before their relationship began and which neither alleges is a family property. 41 The respondent made no financial contribution to the 27th Avenue property. I have no evidence that her activities contributed to the increase in value of the 27th Avenue home which was caused entirely by market forces. It was happenstance that it occurred in the first of the three years of the parties’ relationship. The amount invested by the claimant from the proceeds of sale of the 27th Avenue property is subject to market forces. There is evidence that he had experience of losing several hun- dred thousand dollars from the value of his investments in the immediate years before he met the respondent. In contrast the respondent enjoys a government supported substantial pension against which the claimant makes no claim. Stanbridge v. Stanbridge Affleck J. 445

42 In Williams v. Killey, 2014 BCSC 1846 (B.C. S.C.), the respondent’s townhouse had appreciated in value through market conditions alone by about $107,000 during the 3 1/2 year relationship of the parties. The claimant in the case sought an equal division of the increase in value. Truscott J. considered s. 95 of the Family Law Act, which permits unequal division of family property, if to do otherwise, would be significantly unfair. The brief relationship between the parties was a factor Truscott J. found militated in favour of an unequal division, while the significant contributions made by the claimant to the property’s preservation and maintenance favoured the claimant receiving at least some portion of the increase in the value of the property during the course of the relationship. In a finding I consider important for my decision Truscott J. wrote at para. 69: “I consider it would be significantly unfair to [the claimant] for her efforts to be denied any part of the increase in the townhouse which was due only to market forces while she resided there”. The claimant in that case was awarded 15% of the increase. 43 If the respondent before me received 15% of the increase in the value of the claimant’s 27th Avenue property that sum would be $46,800. 44 Is it significantly unfair that the agreement between the parties before me does not include a similar or even greater payment to the respondent, and therefore the agreement ought to be set aside? I do not think the agreement made in January 2015 was unfair. On the contrary, I believe the brief relationship; the retention by the respondent of the entire proceeds of sale from the Merklin Street property; the absence of any financial contribution by the respondent to the value of the 27th Avenue property, and the decision of the parties to agree to preserve the status quo led to a fair division of assets on the separation. 45 There will be the usual form of divorce order. There will be an order under the Name Act, R.S.B.C. 1996, c. 328, reflecting the respondent’s name as Sherry Lynn Williams. There will be a declaration that the agreement made between the parties as described in these reasons is binding on them. 46 The claimant is entitled to the costs of this application. Otherwise the parties will bear their own costs. Order accordingly. 446 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

[Indexed as: Allen v. Dupont] Dale Elyse Allen, Petitioner and Douglas Roy Dupont, Respondent Yukon Territory Supreme Court Docket: Whitehorse S.C. 83-01214 2014 YKSC 76 L.F. Gower J. Heard: December 16, 2014 Judgment: December 16, 2014 Family law –––– Support — Child support under federal and provincial guidelines — Variation or termination of award — Delay –––– Parties had two children — In 1983 father was ordered to pay child support of $400 per month per child — Father paid child support until 1988, but continued to provide financial assistance to children who were now 35 and 39 years of age — Mother took no steps to enforce payment of outstanding support she claimed was owed until 2014 — Father applied to cancel arrears — Application granted — Mother had not taken steps to enforce matter for over 26 years — Father reasonably believed he was doing what he was obligated to do in circumstances, and children provided objective evidence that supported father’s belief — Father was not responsible for any blameworthy conduct — Father paid significantly more than Federal Child Support Guidelines support during years he paid support and he paid almost as much as if he had been required to pay support until 1997. Family law –––– Support — Child support under federal and provincial guidelines — Retroactive award — Delay in bringing application –––– Par- ties had two children — In 1983 father was ordered to pay child support of $400 per month per child — Father paid child support until 1988, but continued to provide financial assistance to children who were now 35 and 39 years of age — Mother took no steps to enforce payment of outstanding support she claimed was owed until 2014 — Father applied to cancel arrears — Application granted — Mother had not taken steps to enforce matter for over 26 years — Father reasonably believed he was doing what he was obligated to do in circumstances, and children provided objective evidence that supported father’s belief — Father was not responsible for any blameworthy conduct — Father paid significantly more than Federal Child Support Guidelines support during years he paid support and he paid almost as much as if he had been required to pay support until 1997. Allen v. Dupont L.F. Gower J. 447

Cases considered by L.F. Gower J.: S. (D.B.) v. G. (S.R.) (2006), 2006 SCC 37, 2006 CarswellAlta 976, 2006 CarswellAlta 977, [2006] S.C.J. No. 37, 61 Alta. L.R. (4th) 1, 351 N.R. 201, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, 391 A.R. 297, 377 W.A.C. 297, [2006] 2 S.C.R. 231, [2005] S.C.C.A. No. 100 (S.C.C.) — followed Regulations considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Federal Child Support Guidelines, SOR/97-175 Generally — referred to

APPLICATION by father for cancellation of child support arrears.

Dale Elyse Allen, for herself Lenore Morris, for Respondent

L.F. Gower J. (orally):

1 I have had an opportunity to review this file. I was the presiding judge on the original without notice order and on the adjournment, and I have some familiarity with it. I have read all of the affidavit material, and I do not think that I need to reserve any further on this decision, although I will reserve the right to edit any published version of these reasons for things such as technical errors or style. 2 This is an unusual case. It involves a judgment following a divorce dated November 1, 1983, where the father was required to pay child support of $400 a month per child for two children, commencing on Novem- ber 1, 1983, and also spousal support in the amount of $500 a month, which was payable for a fixed term, from November 1, 1983 to and including August 1, 1985. So, for the initial period, the father was required to pay a total of $1,300 a month in combined child and spousal support. I will refer to this order as “the Yukon Order”. 3 I note that there is also a separation agreement on the file, which was dated August 1, 1983. It would appear this was the initial agreement on the terms regarding child support and spousal support. Paragraph 5 specified that the child support would continue until each child reached the full age of 16 years, or was 16 years of age or over and under the mother’s care but unable by reason of illness, disability, full-time attendance at an educational institution or other cause, to withdraw themselves from the mother’s charge and provide themselves with the necessities of 448 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

life. So, even in 1983, there was contemplation that the obligation to pay child support might terminate when the children each reached the age of 16. 4 The father paid child support, pursuant to the Yukon Order, up to and including January 1, 1988, and then ceased. There is a factual dispute about the reasons why his payment of child support stopped at that time, and I will come back to that in a moment. 5 However, the upshot is that the mother took no steps at all in terms of dealing with the courts to enforce payment of what she claims was outstanding child support after January 1, 1988, until she sought to register the Yukon Order with the B.C. Maintenance Enforcement Program. It appears that she did not do that until August 7, 2014, when she signed a declaration, attached to a form, which showed all the payments that she had received from the father since the Yukon Order was made. That form, as I read it, shows that the father made every single payment of what was initially combined child and spousal support, until August 1, 1985, and thereafter the payment of child support at the rate of $800 per month. Those payments continued for each and every month, to and including January 1, 1988, and I stress that I do not see in that record any evidence of a single missed or late payment. 6 Technically, this is the father’s application to cancel the arrears which have notionally accumulated under the Yukon Order, which now total some $71,200. So, in that sense, he is the applicant and he bears an onus on his application. 7 In another sense, in my view, the mother can be looked on as a de 1 facto applicant by virtue of the long delay of over 26 /2 years in seeking enforcement of the Yukon Order, by registering that order with B.C. Maintenance Enforcement on August 7, 2014. In effect, by making that registration, the mother is acting as though she is coming forward and seeking retroactive child support, to begin as of February 1, 1988. Ac- cordingly, I view her as also bearing an onus to satisfy this Court that this is appropriate relief to be granted, in all of the circumstances. 8 I now turn to the question of the factual dispute as to why the child support ceased after January 1, 1988. 9 The father, deposed in his first affidavit, and I quote: In or around January 1988, the petitioner re-married. Around the same time I received through a letter from the Petitioner telling me she had remarried, was expecting another child, and that I no longer needed to pay child support. After receiving the letter I stopped pay- Allen v. Dupont L.F. Gower J. 449

ing support to the Petitioner and until this month, she never asked me to resume doing so. This continues in para. 6 of that affidavit: My son has told me he has recently spoken to his mother, who told him that at the time of her re-marriage her parents told her that she should release me from my obligation to pay support. I do not know why she has changed her mind but I know that the Petitioner and her husband have separated. 10 Now, the father has indicated through his counsel that that letter has long since been waylaid or mislaid, and he was not able to produce it as part of the evidence on his application. 11 The mother filed a single affidavit in response to the father’s application, and she states at para. 3: In 1987 I remarried, Gerard Robert Allen and immediately after my marriage, all child support payments became sporadic in nature. I called the Respondent on numerous occasions to ask for payment of child support. I was met with resistance and excuses, and told he did not have the money available, and considered himself to be “poor”. I continued to pursue the payments through monthly phone calls. [my emphasis] 12 And then, at para. 4: On February 3rd, 1988, I gave birth to my third and last child, Naomi Ruth Aimee Allen. I was promptly diagnosed with Fibromyalgia and sleep depravation after Naomi’s birth. Due to my condition, in addition to raising my family and taking care of a home, I was unable to fight the Respondent for the $800 per month I was owed. I subse- quently stopped calling and the child support ceased completely in February 1988. There was never a document, legal or otherwise, dismissing the Respondent from his child support payments. 13 My first concern is the statement under oath by the mother that, immediately after her marriage, “all child support payments became sporadic in nature.” That simply does not accord with the record of payments which is declared by the mother to be accurate. As I said a moment ago, that record shows that there were no late or missed payments. On the contrary, they seem to have been regularly paid on a monthly basis. So, in that sense, I have a problem with the mother bearing some kind of an onus on this application to revive a long-dormant child support order through B.C. Maintenance Enforcement. 14 It is difficult when one is relying on affidavits. This is not a full- fledged trial where there has been cross-examination of the parties on 450 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

their respective affidavits, or generally. Having said that, I prefer the evidence of the father because, given his regularity and punctuality in terms of previous child and spousal support payments for a period of about five years, it strikes me that there must have been some precipitating event for that to all of a sudden have ceased as of February 1, 1988. Further, it seems more likely than not that the precipitating event was something like the letter the father claims to have received from the mother indicating that he no longer needed to pay child support. 15 In any event, the simple fact of the matter is that the mother has taken 1 no steps to enforce this matter for some 26 /2 years. That causes me to refer to the case of S. (D.B.) v. G. (S.R.), 2006 SCC 37 (S.C.C.), (“S. (D.B.)”), one of the leading cases from the Supreme Court of Canada on the issue of retroactive child support. I have already read into the record during submissions the comments of the Supreme Court, at para. 98, claiming that the case is not meant to apply to situations where arrears have accumulated. On its face, one could look at the situation in the case at bar as being equivalent to one where arrears have accumulated. How- ever, because of the long delay and the unusual circumstances in the mother taking no steps towards enforcement, it also seems to be roughly analogous to an application by a parent for retroactive child support. S. (D.B.) talks about the various factors which should be taken into account as part of a holistic view of those kinds of applications to decide whether retroactive child support is appropriate or not. 16 One of the defining features of these kinds of cases is that the application for child support, in this case by way of the registration of the Yu- 1 kon Order in B.C., some 26 /2 years later, could have been done earlier but was not: S. (D.B.), at para. 100. That seems to be the situation here. 17 At para. 101, the Court also goes on to say that delay in seeking child support is not presumptively justifiable and that there are two concerns at play. One is the payor parent’s interest in certainty, and the second is that a delay in seeking appropriate child support for the children is a poor substitute for past obligations not met. 18 At para. 104, the Court confirms that child support is the right of the child. 19 At paras. 105 through 109, the Court talks about blameworthy conduct on the part of the payor parent, in this case the father, and encour- ages courts to take an expansive view of what constitutes blameworthy conduct. In my view, given my preference for the father’s version of events as to why the child support payments stopped in February 1988, it Allen v. Dupont L.F. Gower J. 451

is difficult to characterize the father’s conduct here as blameworthy in any particular respect. 20 At para. 108, the Supreme Court stated that objective indicators can be helpful in determining whether a payor parent is blameworthy. For example, the existence of a reasonably-held belief that the payor parent is meeting his support obligations may be a good indicator of whether or not that parent is engaging in blameworthy conduct. 21 In this case, there is some objective evidence in the form of letters from the two children, who are now 35 and 39 years of age, respectively. I am going to read in both of those letters, or at least parts of them, because the mother has made a great deal in her submissions about the fact that somehow the children have been short-changed by the father’s failure to pay the full amount of child support notionally due under the Yu- kon Order. That seems to fly in the face of the sentiments expressed by each of the two children in their respective letters. 22 I will read first from the letter of the elder daughter, 39 years of age, in which she states: In regards to my father, Douglas Dupont, please accept this letter as confirmation of monetary support from my father to myself from the years after my parents divorce. In addition to paying for flights and travel for our many visits with him over the years he also bought my first vehicle. He helped me get my first apartment. My father has on several occasions given me money whenever I have asked for his help including buying winter tires for my vehicle, he helped with my mortgage payment recently as well as lent me $25,000 approximately 4 years ago to buy out a former spouse from a property I own, for this amount, we have a legal agreement showing the terms and conditions of payback. [as written] 23 The other letter is from the 35-year-old son: I am writing this letter today to inform the parties involved that my father Douglas DuPont although didn’t live close to us did everything in his power to be a positive part of mine and my sisters life he flew us to see him every chance he had Christmas, spring breaks and I spent every summer with him from the time I was 5 or 6 right up to my teenage years. I even lived with [him] for one year during my trouble some teenage years. There was never a time that if we needed something money, clothes, things for school that he would be there to pay for things for us. He bought my sister a car for graduation and bought two cars because one of them I wrecked so he bought me 452 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

another. He also helped me become a plumbing apprentice and put me to work several times throughout my life. He also gave me $4000 to finish off my trade school in Edmonton. I can go on and on my dad’s a good man, and I have nothing but respect for him he’s helped me so much through my life and I love him dearly. [as written] 24 There are some typographical errors in that letter, but I have reproduced it as it is written. 25 These letters indicate to me some objective evidence to support the father’s reasonable belief that he was doing what he was obliged to do in all of the circumstances, and also tends to go against the idea of the father having been responsible for any blameworthy conduct. 26 At para. 109 of S. (D.B.), the Court states: ...But having regard to all the circumstances, where it appears to a court that the payor parent has contributed to his/her child’s support in a way that satisfied his/her obligation, no retroactive support award should be ordered. 27 The other thing that S. (D.B.) talks about, at paras. 114 through 116, is the extent to which hardship to the payor parent should be taken into account. At para. 116, the Court says that courts should attempt to craft the retroactive award in a way that minimizes hardship. 28 Another important consideration is the date on which the recipient parent gives notice to the payor parent that they intend to pursue the issue of retroactive child support. Now, in this case, arguably, no such notice was given until the father received the documentation from B.C. Maintenance Enforcement, which I understand did not come through until October 2014. Again, I am proceeding from the assumption that S. (D.B.) can be analogized to this set of circumstances. 29 Further, at para. 123, the Court stated: Once the recipient parent raises the issue of child support, his/her responsibility is not automatically fulfilled. Discussions should move forward. If they do not, legal action should be contemplated. While the date of effective notice will usually signal an effort on the part of the recipient parent to alter the child support situation, a prolonged period of inactivity after effective notice may indicate that the payor parent’s reasonable interest in certainty has returned... 30 In the case at bar, the mother claims that she was pestering the father for child support around the time of or shortly after her re-marriage, and around the time of the birth of her third child. If that is to be taken as effective notice of her intention to pursue the issue, then she did not do Allen v. Dupont L.F. Gower J. 453

1 anything after that, for a period of 26 /2 years, which, in my view, constitutes a prolonged period of inactivity. 31 At para. 133 of S. (D.B.), the Court states that all of the relevant circumstances must be taken into account, and that the payor parent’s interest in certainty must be balanced with the need for flexibility and fairness. 32 Finally, at para. 135 of S. (D.B.), the Court notes that: The question of retroactive child support awards is a challenging one because it only arises when at least one parent has paid insufficient attention to the payments his/her child was owed. Courts must strive to resolve such situations in the fairest way possible, with utmost sensitivity to the situation at hand. But there is unfortunately little that can be done to remedy the fact that the child in question did not receive the support payments (s)he was due at the time when (s)he was entitled to them... That, again, strikes me as being potentially relevant to the case at bar. 33 I also note that the father, in fact, paid a total of $40,800 in child support over the five years from 1983 to 1988 when, if he had paid child support pursuant to the Child Support Guidelines, would only have been obliged to pay something in the neighbourhood of $12,000. Further, if the father was required to have paid child support over the total period from 1983 to 1997 (when the children ceased to be entitled), inclusive, based on his income information (a statement of Canada Pension Plan contributions indicating his annual incomes from 1970 through to 2011), he would only have been obliged to pay a total of $44,196. 34 Having taken all of the circumstances into account, and applying the principles from S. (D.B.) to the case at bar, I am satisfied that the father’s application should be granted, and I proceed to cancel all the arrears of child support accumulated under the Yukon Order. Application granted. 454 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

[Indexed as: Catholic Children’s Aid Society of Toronto v. C. (M.)] Catholic Children’s Aid Society of Toronto, Applicant and M. C. and K. W., Respondents Ontario Court of Justice Docket: Toronto CFO-13-10447-01 2015 ONCJ 427 Heather L. Katarynych J. Heard: July 31, 2015 Judgment: August 5, 2015 Family law –––– Costs — Children in need of protection –––– Costs against Children’s Aid Society (CAS) — Mother was in relationship with father who had history of physical and sexual assaults on others — Mother’s first child with father was apprehended at six weeks of age — Apprehension occurred because father, by court order, was not permitted to have contact with children except in supervision of adult approved by probation and parole officer — Mother herself had been doing supervision, without necessary approval — Mother’s second child with father was apprehended at birth — Mother was church-going woman who believed father could be rehabilitated, but she maintained distance from CAS — At some point, CAS worker presumed mother had risk factors of substance abuse and mental illness even though there were none — Children were found to be in need of protection but were ultimately returned to mother under supervision order that required, in part, that father to be kept away from them — CAS was directed to purge its records of false information — Father was currently detained on serious charges — Mother sought costs against CAS in total amount of $21,919.39 — Mother was awarded $5,000 for costs, and prior direction to CAS to purge its records of false information was reiterated — CAS had not “misread” case, and there was no unfair dealing to be addressed by costs award — CAS had apprehended children due to risk from father — There was no “unfairness” in CAS identifying risk of harm posed by mother when she assumed role of supervisor without seeking requisite approval — There was no unfair dealing in CAS’s expectation that mother end her relationship with father — There was also no unfair dealing in CAS’s attempt to seek Crown wardship for both children — Mother’s apparent loyalty to father throughout kept alive CAS’s initial concern that, for reasons unfathomable to CAS, she was blind to risk of harm embedded in his dysfunction — As result of mother choosing to isolate herself, her background and understandable motives had not come to light until trial — CAS’s investigation of mother fell markedly short of what CCAS of Toronto v. C. (M.) 455

was needed, but mother had made herself unavailable — CAS could be faulted for rejecting child’s godmother as alternative to foster care, as had proposed by father and supported by mother — Both godmother and her plan were more than adequate for these children while matter made its way through court process — On other hand, mother never brought motion to change temporary custody order prior to trial — Sole fault warranting costs award was CAS worker’s presumption of mother having risk factors of substance abuse and mental illness — Those presumptions left sitting in CAS records were seriously maligning. Cases considered by Heather L. Katarynych J.: B. (D.) v. Children’s Aid Society of Durham (Region) (1987), 20 C.P.C. (2d) 61, 1987 CarswellOnt 459, [1987] O.J. No. 1847 (Ont. Fam. Ct.) — referred to Catholic Children’s Aid Society of Toronto v. V. (S.) (2000), 2000 CarswellOnt 6191, [2000] O.J. No. 5866 (Ont. C.J.) — referred to Children’s Aid Society of Waterloo (Regional Municipality) v. C. (Z.B.) (1996), 1996 CarswellOnt 4670, [1996] O.J. No. 4245, 10 O.F.L.R. 124 (Ont. Prov. Div.) — referred to New Brunswick (Minister of Health & Community Services) v. G. (J.) (1999), 1999 CarswellNB 305, 1999 CarswellNB 306, [1999] S.C.J. No. 47, 26 C.R. (5th) 203, 244 N.R. 276, 177 D.L.R. (4th) 124, 50 R.F.L. (4th) 63, 66 C.R.R. (2d) 267, 216 N.B.R. (2d) 25, 552 A.P.R. 25, [1999] 3 S.C.R. 46, 7 B.H.R.C. 615, REJB 1999-14250, [1999] A.C.S. No. 47 (S.C.C.) — referred to S. (D.), Re (2003), 2003 CarswellOnt 898, 170 O.A.C. 344, [2003] O.J. No. 945, 39 R.F.L. (5th) 209 (Ont. Div. Ct.) — referred to Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to Child and Family Services Act, R.S.O. 1990, c. C.11 Generally — referred to s. 37(2)(b)(i) — considered s. 37(2)(d) — considered s. 51(6) — considered s. 57.1 [en. 2006, c. 5, s. 14] — considered Courts of Justice Act, R.S.O. 1990, c. C.43 s. 131 — referred to Rules considered: Family Law Rules, O. Reg. 114/99 Generally — referred to R. 24 — considered 456 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

R. 24(3) — referred to

APPLICATION by mother for trial costs.

Ms Mei Chen, for Applicant, Society Ms Tammy Law, for Respondent, M.C. Mr. David Miller (Agent), for Respondent, K.C.

Heather L. Katarynych J.:

1 Counsel for mother seeks trial costs against the Toronto Catholic Children’s Aid Society in the amount of $ 21, 919.39 ($19,204.50 in lawyer fees and $193.19 in disbursements). 2 The society seeks an order dismissing that claim, on the basis that the mother has not made out a costs case sufficiently within the law governing costs against a Children’s Aid Society. 3 Although the father had sought a costs order against the society on a full recovery basis in Answer of November 2013, no submissions on trial costs were received from him. I have endorsed his Costs claim as abandoned. 4 This is the decision on trial costs.

Context 5 The trial judgment was delivered orally at the close of a six day trial. 6 It found the children’s need of protection lodged within s. 37(2)(b)(i) and (d) of the CFSA, ended the “temporary” foster care that had consumed the entire life of the younger child and all but the first 6 weeks of the older child, and restored the two children to their mother’s custody and care under a 12 month court-ordered society supervision on specified conditions, and other orders designed to keep separation between the children and their father. 7 The father, through his counsel, did not contest the finding. Father is detained on serious criminal charges. Although arrangements could have been made for him to be present for the trial, no such arrangements were sought. 8 The mother conceded the propriety of the “need of protection” finding in the course of the trial. 9 A transcript of the oral reasons was provided to all three counsel shortly after the trial as a reference tool for the transition. That was done CCAS of Toronto v. C. (M.) Katarynych J. 457

because in due course that order will come before the court in another jurisdiction as part of the status review process required by the legislation. The mother has her residence in a region adjacent to Toronto served by a different Society. 10 The fleshing out of the oral reasons promised at the close of trial is incorporated into this decision on trial costs.

The Legal Principles Brought to Bear on the Adjudication 11 In a nutshell, they are these: 12 All costs orders are exercises of judicial discretion. See Courts of Jus- tice Act, R.S.O. 1990 c. C-43 as amended, s.131. 13 That discretion is to be exercised within the framework provided by s. 24 of the Family Law Rules. See O. Reg/ 114/99 as amended. 14 In a child protection case, there is no presumption that the successful party is entitled to a costs order. See FLR 24(3). 15 That is so because a Children’s Aid Society has a statutory responsibility to reach to the court if it has reason to believe that a child is in need of protection and that reach is needed for that child. As the law sees it, a child protection agency should not be hesitant about its statutory responsibility by the prospect of a costs award against it for its efforts. See S. (D.), Re, 2003 CarswellOnt 898 (Ont. Div. Ct.) (per Justices Then, Plantana and Aston). 16 That does not mean that Children’s Aid Societies are immune from costs orders. It does mean that “any such order must be based on something more than merely the outcome of the case”. See S. (D.), Re, supra, at para 5. 17 Similarly parents subjected to child protection litigation are generally insulated from costs claims. That is so because, when faced with State intervention in the parenting of their children, they have a right to force the State to prove its case. They are not to be penalized in costs for exercising that right. See S. (D.), Re, supra at para 3. 18 A costs order can reserve as reminder to a child protection agency that its attitude to its work must be kept aligned to the attitude required by the legislation governing the work. See, for example, Children’s Aid Society of Waterloo (Regional Municipality) v. C. (Z.B.) 1996 CanLII 4742; 1996 CarswellOnt 4670 (Ont. Prov. Div.); and Catholic Children’s Aid Society of Toronto v. V. (S.), [2000] O.J. No. 5866 (Ont. C.J.). 458 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

19 In determining costs claims, jurisprudence rooted in domestic cases is not helpful. 20 Child protection law is not ordinary civil litigation with a sliding standard of proof. Careful and contextual read of the Child and Family Ser- vices Act makes that plain. So does the procedural and evidentiary law governing child protection litigation. 21 Jurisprudence drawn from other child protection cases is helpful only if kept in mind is the reality that costs against a child protection agency is fact-specific decision-making. 22 The central focus is the fairness of the agency’s dealings with the parents and their children, whether at the stage of initial child protection investigation, ongoing assessment of “risk” in the family or delivery of its protection services. 23 Fair dealing matters in the exercise of child protection power. It is, has been and always will be fundamental duty in child protection work. 24 Many years ago, the Supreme Court of Canada made that plain, pointing out that the values cast in the Canadian Charter of Rights and Free- doms to contain unwarranted State intrusion overarches the work of child protection agencies. Those agencies, however they name themselves in the community, are arms of the State, servitors of the statute that stipulates the agency’s powers, the constraints on its exercise of those powers, and the attitude required for the exercise of its powers. See New Brunswick (Minister of Health & Community Services) v. G. (J.), [1999] 3 S.C.R. 46 (S.C.C.); 1999CanLII653. 25 That “fair dealing” is assessed through the eyes of the ordinary person. The Child and Family Services Act has been governing child protection law in Ontario for more than a quarter century. The ordinary person expects staff of a child protection agency to make visible its understanding of its requirements. 26 That ordinary person expects the child protection agency to hold its intervention proportionate to the need for intervention. 27 In that regard, the ordinary person expects a child protection agency to recognize that birth family are preserved for children when that course of action does not undermine the primary objective of the Act to promote the child’s best interests, protection and wellbeing, and not preserved for a child when the child cannot be responsibly protected within the family. 28 That ordinary person expects a child protection agency to pay attention to the quality of information flowing into the evaluation of “risk”; - CCAS of Toronto v. C. (M.) Katarynych J. 459

that both its staff and its records convey accurate information about its clients. 29 The ordinary person looks to staff to ensure that a family is not mis- represented, that the decision-making for the child is not pock-marked with exaggerations, speculations, guesses, leaps into assumptions, and other trash. 30 The ordinary person expects a child protection agency to reach out to parents believed to have caused or contributed to a child’s need for protective intervention, to obtain their perspective on the alleged risk of harm to the child, to carefully consider that perspective in the context of the whole of the investigatory information. 31 The ordinary person expects “due diligence” check by the child protection agency on information flowing in, and mindfulness that “allegation” is not a synonym for “proven fact”. 32 That ordinary person expects a child protection agency to provide ongoing full and frank disclosure of its investigation and decision-making and in a timely manner so that a parent has fair opportunity to make response. 33 The ordinary person expects child protection agency staff to appreciate the imbalance of power between the agency and a child’s family and to make visible the society’s interest in having the parent “at the table” and part of the problem-solving needed for the child. 34 The ordinary person expects a child protection agency to guard against litigation drift, to recognize that a child’s family relationships are withered by drift, and that the agency’s inertia is easily read as disinterest in the family and quite deliberate “timing” of a child to a permanent planning outside the family. 35 The ordinary person expects all that, knowing that fair decision-making is not accomplished by the choreographing of time, nor by slap-dash leaps about parents or their children or their circumstances or their abilities. 36 So it is that the ordinary person has hovered, drone-like, over this adjudication.

On the Society’s Conduct in This Case 37 The jurisprudence submitted to guide thoughts about the society’s conduct in this case was not particularly helpful. 460 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

38 This is not a Costs case rooted in a society’s mismanagement of investigation in the context of high conflict domestic litigation that has veered into the child protection path by a warring parent’s complaint that the other is “risk” to the child. See, for example, B. (D.) v. Children’s Aid Society of Durham (Region), 1987 CarswellOnt 459 (Ont. Fam. Ct.) per Dunn J. and the trail of cases that have similar scenario. 39 It is also not a case where a society’s dip into “unfair dealing” was nipped in the bud, through either the society’s own internal vigilance or through judicial case management conferencing. See Catholic Children’s Aid Society of Toronto v. V. (S.). 40 This is essentially a case in which two children were held in “temporary” foster care long past the time reasonably needed for that foster care, and in the case of the older child, in frank disregard of the statutory max- imum for temporary foster care for a child under age 6. 41 But for the rudimentary nurturing that is available through society based access, the younger child had missed out on his mother’s parenting for the whole of his life. His older sister, closing in on her 2nd birthday when the trial judgment was rendered, had lost her mother’s parenting for all but the first few weeks of her life. 42 The ordinary person peering in on that scene, with the statute in hand, would have a problem with that unfolding of this litigation. 43 That ordinary person would also be mindful that hindsight is not the proper lens for a costs adjudication. 44 So it is that the ordinary person would hone in on what was in plain sight while these two young children drifted in litigation. 45 With that as backdrop, these are the “costs relevant” findings on the trial record.

On Attitude to the Mother 46 In sum, and on what the society had available to it in investigatory information at various times throughout its interaction with these parents, the society did not “misread” the case, as submitted by mother’s counsel, and thereby visit the unfair dealing addressed by costs jurisprudence. 47 On the whole of the evidence, and essentially conceded by the society at trial, it was the risk presented by this father that propelled the society’s decision to apprehend both children born to these parents. 48 There was no “unfairness” in the society’s lodging of primary risk to these children in their father’s criminality. CCAS of Toronto v. C. (M.) Katarynych J. 461

49 His is a history of serious criminality presenting a substantial risk of harm to a vulnerable child. It is a history of sexual abuse and physical violence towards others. He has been, is and will continue to be a serious risk to the safety of these two children until such time as he has shown ability and motivation to throw off this dysfunctional behaviour and lead a law abiding life. 50 What was unfolding in the first few weeks of the first child’s life was formation of “family”, in circumstances where father, by court order, was not permitted have contact with children except in the supervision of an adult approved by his probation and parole supervisor. The mother herself had been doing the supervision. On her own evidence, she had not received the necessary approval from father’s probation/parole officer for that role. She rested instead in her expectation that the officer was likely inclined to give it to her, and that approval would be forthcoming. 51 There was no “unfairness” in the society’s identification of the risk of harm posed by the mother. 52 By her own involvement in the formation of family with this father, she was putting their newborn at unacceptable risk of harm, and actually fuelling the father’s own breach of the “no unsupervised contact with children” order. Her belief that she would be approved by the probation/parole officers monitoring father’s rehabilitation was not enough, and it is reasonable to expect her to know that. Her desire to be given that responsibility was known to the probation/parole workers, and they were seeing, deservedly or not, a woman who was unlikely to be able to effectively carry out the required “supervision” because she appeared so subservient to this man. 53 On the little that the society knew about this mother at the time, she appeared bent on having this man in her life and in the life of her child, despite his criminal past and the nature and extent of his offending. That presentation of self attracts precisely the “need of protection” grounds advanced by the society in both its initial and its amended protection applications. 54 On what the society knew about each parent at the time, there was no unfair dealing in the society’s expectation that the mother end her relationship with this man if she was to have the children in her care and parenting. 55 In the end, on what the society knew about each parent at the time, there was also no unfair dealing in the Society’s speed-dial from the six 462 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

month wardship claim in its initial protection application for the firstborn child to Crown wardship planning for both children. 56 What the child protection agency had in the father was frank deprav- ity. What the child protection agency had in the mother was ever grow- ing mystery about her desire for this man in her life and the life of their children. The picture was a woman either unable or unwilling to grasp the risks inherent in that desire for relationship. 57 That picture came into even sharper focus because of the chasm that developed between the mother and the social worker responsible for management of the case. 58 Although she tried, the society’s “family services” social worker was not able to form sufficient engagement with the mother to attract the mother’s trust. 59 Since mother was engaging with society staff involved in the foster care of her children, and the foster parents themselves, and attending plan of care meetings, it appeared that her distancing of herself from the family services worker responsible for working through the need of protection concerns with her, was mother’s choice. The mother’s consistent response was direction to the social worker to speak to mother’s lawyer. 60 The family services worker did not pursue that avenue of access to the mother, choosing instead to wait until the mother approached her. 61 Mother never did. It was now mother’s belief that the social worker was “writing her off”. Unknown to the social worker, the mother was waiting for the social worker to show more interest in her. 62 There was no “family service” happening because, from the lens of the society, neither parent was available for it. 63 Absent mother’s input into the protection work, her apparent loyalty to the father kept alive the society’s initial concern that for reasons unfathomable to the society, she was blind to the risk of harm embedded in his dysfunction. 64 It was not that the message to the mother had been muffled. The society had been blunt. She would not be a planning option for either child unless and until she could show to the society that she had ended her relationship with the father. That message sounded early in the society’s intervention, and in even more pronounced tone when she was served with the society’s amended protection application seeking Crown wardship to free her children for adoption. CCAS of Toronto v. C. (M.) Katarynych J. 463

65 From the society’s read of its statutory duty to these children, restora- tion of the children to mother required the father to be kept out of the parenting. 66 That was also to be the trial judgment. Mother had to make a choice. 67 Instead, mother had made herself a silo. Not much gets accomplished in child protection work from inside a silo. 68 There was considerable inner turmoil within that silo. 69 For mother, an ending of relationship with this father was not an easy toss, - for a reason that had nothing to do with her love for her children. This mother needed help to do what was demanded of her. 70 How much this mother needed help to meet the society’s demand was not apparent at the time and would not be revealed to the society until mother’s testimony in the trial. 71 Had the mother been prepared to tell the society what she ultimately told the court at trial, the society investigators would have had in hand, as backdrop, the backstory. 72 She had met this man a number of years ago through a co-worker. 73 He had recently been released from federal prison and was living in a half-way house. 74 Friendship developed. He told her about his criminal past and what he had learned and done over the course of his imprisonment to rehabilitate himself. She learned from him that, in addition to programming specifically targeting his deviant behaviour, he had taken the benefit of pastoral ministry made available to him as part of prison life. He was now on parole and committed to a law abiding and God-fearing life. 75 She believed him. As I understood her evidence, the pastor of her church community had been part of that pastoral outreach to the prison. 76 Friendship developed. He had set himself into income earning through construction work. She helped him with bookkeeping. Relation- ship developed. Deepening of relationship led to marriage. She subse- quently divorced him, not because of any sin that he had committed towards her, but because of sin she believed that she had committed again him. 77 Over the course of time, they reunited in a common law relationship. They involved themselves in a church community. He played an active role in the preaching of the church about redemption, using his own experience as example. 464 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

78 This mother is herself a person of faith. 79 She saw qualities in him that were quite distinct from his past criminal lifestyle. She described him as an articulate and intelligent man, an extrovert to her introverted personality. Whatever the criminality in his interactions with others in the past, and factoring in the sorts of “minor arguments” (as she described their sorting through of each other’s points of view on things) and his tendency at times to want her to see things his way, her own overall experience of him had been positive. 80 Specifically, he had nothing in their time together that signalled risk to her safety or safety to their infant daughter. 81 She was aware of his criminal history because he himself had told her about it shortly after they met. It had alarmed her sufficiently that she kept a close watch on the father-child interaction and never left the child alone with him. 82 She believed that he had changed his life. She saw goodness in him. In her thinking, his past was not his present and would not likely be his future. She could be mindful of his criminal past. Unlike the child protection agency, she could not define his worth by it alone. 83 That “seeing more” in him than his past criminality was rooted in beliefs that lie deep within her, beliefs seeded in her childhood within the nurturing of her own family. They are beliefs in which she wants to raise her children. 84 These beliefs include the doctrine that marriage is a “for better or for worse...till death do us part” sort of commitment, doctrine that a wife honours and obeys her husband, doctrine about mercy and forgiveness, doctrine that children are grown in the love of both parents. As I understood her evidence, to cast her husband aside is a form of sin. She was also struggling with this father’s desire to be a continuing part of her life and the life of their children. 85 It is tenet of her faith that broken people are not discarded as vile dung. Plain was this mother’s difficulty processing a response to her partner’s criminality that, in rejecting the criminality, does not reject the person caught up in it. 86 In short, this was not a woman who had embraced this paroled con- vict with intent to be part of a criminal or otherwise irresponsible lifestyle. She had believed in this man’s rehabilitation and was cheering him forward. CCAS of Toronto v. C. (M.) Katarynych J. 465

87 So it is that when he was charged with further crime, she stood surety for him on conditions stipulated by the court in the bail hearing, presum- ing him to be innocent of the charges unless and until otherwise found by the court. 88 In essence, this child protection agency would have learned that the mother could not figure out an exit from relationship with this father that was acceptable, not just to the Children’s Aid Society but also acceptable to her God. 89 Had mother come out of her silo earlier, the society social worker would also have learned that this mother, now in her mid-thirties, is an educated woman, also schooled in social work, employed in the care of vulnerable people, a person with no criminal or child protection record. 90 These children are her only children. 91 It would have helped these children considerably, had the society known all this before the mother’s testimony in the trial. 92 Her inner turmoil would not have altered the stance that she had to end the relationship. 93 It would, however, have opened opportunity to try to help her do it. For example, it might have opened discussion with this mother’s pastor. It might have provided opportunity to meet others similarly situated and working through the same sort of turmoil. It might have tapped into those who already had a measure of this mother’s trust, including the church- woman chosen by the parent to be godmother to their daughter. Reality is that there were those who could - and likely would - have stood ready to walk the hard road with this mother, - including the society social worker herself, - had this mother been able to speak about her turmoil. 94 The society did have hints of a progression in the mother’s thinking about relationship. In both the initial and the amended application, as a “brief” statement of fact upon which the society was relying, is the asser- tion that mother “initially stated that she planned to reunite with Mr. W., once he is released from custody, although she is now saying her plan is to live on her own.” 95 That said, the society did not catch and take hold of the shift. The words were there. The walk was not. 96 On her evidence, she felt “written off” after the society announced to her, a mere month after its apprehension of then three week old Olivia, that it was seeking Crown wardship and adoption for her. When the society removed Alexander from her shortly after his birth, dismissing as in- 466 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

sufficient, the safety planning desired by both parents, this society inten- sified the message that it had “written her off”. 97 In actual fact, this mother was well on the road to being “written off” as an option for the children’s parenting, essentially because of her distancing of herself from the very society staff who needed her to come closer if she was to be a meaningful part of decision-making for the children 98 The ordinary person would point out that, within the child protection scheme laid out in the Child and Family Services Act, parents do get “written off” as a parenting option if they are not sufficiently available for the work that needs to be done to pave the way for planning desired by the parent. 99 This mother acknowledged in her testimony that her standard response, when overture was made to her, was to tell the social worker to speak to her lawyer. 100 Although not tuned into it at the time, she realized, in hindsight, that in distancing herself from opportunity to forge relationship with the society worker, she had sent the message that she wanted to be left alone. The social worker left her alone. 101 The mother wanted a filter for her voice. Advocacy for a parent must take care in that regard. Filtered communication can lead to a shrouding of the parent. When the allegation is risk to a child, responsible and child-centred investigation and evaluation of a parent’s abilities and vulnerabilities cannot be obtained through a shroud. Accurate pulse on “risk” and proportionate response to it requires direct dialogue and interaction between parent and child protection agency. 102 Did the society investigation of this mother fall markedly short of what was needed for properly informed investigation? 103 Yes. Disconnect between a parent and Children’s Aid Society does that. As a matter of common sense, a society cannot display its “fair dealing” if the very person entitled to that dealing, makes herself unavailable for the display. 104 It is in this regard that child protection litigation differs from ordinary civil litigation. More is expected than lawyer speak, and the client needs to understand that reality. Within the scheme of this statute, it is the parent who has pride of place at the problem-solving table, not the parent’s lawyer. CCAS of Toronto v. C. (M.) Katarynych J. 467

105 Good lawyering keeps pivotal watch on “fair dealing” in a case without usurping that place at the problem-solving table. 106 The society lawyer has always had a particularly high duty to keep watch on the agency’s attention to “fair dealing”, and is expected by the Charter arching over the litigation, to take prompt and effective action within the agency itself to correct any slide into unfairness. 107 Could the child protection agency have done more to try to engage this mother? 108 Yes. 109 There were early indicators that “engagement” might be a problem for this mother. 110 In her trial evidence, the society’s intake worker, in expressing her own opinion about this mother’s apparent disconnect from the risk presented by father, pointed to the mother’s “flat affect” in her own attempts to engage the mother, to the mother’s “calm”, her failure to voice “anger” about the father in circumstances where others were enraged by his behaviour. 111 Had she been able to get to know her better, she would have discov- ered that this mother is introverted by nature, even meek, both on her own evidence and on plain observation of her approach to her life. 112 This intervention was this mother’s first encounter with a Children’s Aid Society and its powers. 113 She was no “seasoned” child welfare client, familiar with the society’s workings or expectations. 114 The ordinary person would remind the child protection agency that this mother and the society’s staff were never on an “equal footing” in this child protection landscape. Problems in engagement are not uncom- mon in child protection work. Imbalance in power does that. 115 Oft used response to “engagement problem” is change of society family services worker. 116 The ordinary person would frown at suggestion that the mother herself, and certainly with the assistance of her lawyer, could have asked for a change in worker. 117 Astute child protection workers do not wait for a reticent parent to ask for a change of worker. They know that a fearful parent may not initiate the process, lest the quest fail and the parent’s reach worsens an unready difficult interaction. 468 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

118 The ordinary person would expect the society itself to take the initia- tive; - to find solution for the “engagement problem” from within its own ranks in a timely fashion, using its own resources. 119 Astute child protection workers do that because they recognize that there may be a better “fit” with someone else. They do it because “fresh starts” are often the best way to make visible the agency’s interest in trying to reduce anxiety about the interaction. They do it with grace. It is an act of kindness. 120 They do it because they have an eye on the passage of time, and the need for problem-solving without undue delay. It is understanding, not just about the power imbalance in this litigation, but also understanding about the impact of clock ticking. 121 Problems in engagement cannot be left in the “no action” zone without serious “fair dealing” impact on both the parents and their children. 122 “Fair dealing” duty includes movement of litigation forward for adjudication of the merits of the agency’s claims when difficulty in engagement is paralysing the progress of the case. 123 The ordinary person, statute in hand, would point out that the passage of time in foster care with insufficient child-parent access, withers relationship between a child and a parent and leaves strong impression that the child protection agency is trying, by manipulation of access, to gain a Crown wardship order through choreography.

On Attitude to the Father In Relation to his “Safety Plan” 124 As early as November 2013, the society had an alternative to society foster care for Olivia. 125 The father had answered the society’s protection applications on No- vember 12, 2013, effectively acknowledging the risk in him that was being alleged by the society, and proposing a plan that had the child’s godmother waiting in the wings as an alternative “safety plan” to the society’s temporary foster care. 126 That plan also contemplated the longer term parenting of the child; - either a court-ordered society supervision under the Act or the s.57.1 custody order permitted by the CFSA, with a “specified” supervised access between himself and the infant. 127 He set out in his Answer why he felt that this plan would be in this child’s best interests. This godmother was prepared to look after the child CCAS of Toronto v. C. (M.) Katarynych J. 469

permanently if needed to do that. She was an excellent parent, in his esti- mation, had raised her own now almost adult daughter and was raising her 8 year old grandnephew. She would cooperate with the society and any court order and “will protect the daughter with respect to any child protection concerns in the case”. 128 The mother, in her response, supported this plan. She added that she herself felt very close to this godmother and pointed out that if the godmother were allowed to adopt or take custody of Olivia, she felt confident that her own access and contact to her daughter would be preserved. 129 The society rejected the plan. As I understood it the whole of the evidence relevant to that rejection, the plan did not meet the criteria stipulated for kinship planning by both the agency and Ministry policy and regulations. 130 What had been fed into that “kin” assessment as fodder for evaluation of the plan did not emerge clearly, largely because the attitude of those doing the feeding got in the way. 131 This godmother was actually given quite short shrift by both the social worker who had done the initial information gathering for the kin department investigation, and the social worker who had been assigned to do the assessment. 132 The godmother was not good enough in part because in the eyes of these social workers, she did not know enough about the father’s criminality. Left untethered was what information had been provided to her, not just from the father but from the society itself, if it wanted her to be fully informed about the risk presented by the father. The support of both parents for the plan could be reasonably expected to produce the necessary consents to information-sharing. As a matter of common sense, it would be refusal to permit the information flow that would call into question, the integrity of the plan. 133 The godmother was not good enough in part because she did not give the desired answers to the “what if” questions posed in relation to what she would do if the father turned up at the church nursery and was found playing with the children. The godmother’s response to that “what if” focused on the inaccessibility that the father or anyone else from the community had to the church nursery. When she was pressed on the “what if” part, she responded that she would sit down and join in the play. 470 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

134 Although the social worker found that response unpalatable, it actually made both common and child sense. This godmother, herself a woman of faith deeply involved in the same church community as the parents, would not react with panic or hysteria or deliberate fomenting of anxiety, either in the presence of the children or otherwise. She would not treat the man as a monstrosity in her sight. 135 She would instead deal with the “eventuality” with supervision of the play. That approach, in essence, was consistent with the terms of the criminal court’s order respecting father’s contact with children. It was not contact that was forbidden. What was forbidden was unsupervised contact by a responsible adult approved for the task. It was this court’s trial order that closed the contact altogether, for reasons given, until father positions himself for a supervised contact with his children. 136 The godmother was not “good enough” in part because the kin worker leapt to conclusion that this godmother had “allowed” the young child in her care to be treated badly by his mother. Had there been any real listening to the godmother on that point, the social worker would have learned that this godmother had this child in her parenting to shield him from his mother’s harshness, that she was alert to untoward behaviour when the child’s mother visited the godmother’s home, and that the godmother intervened when it was called for. Her niece was family and her child in this godmother’s care under court order, - frank testament that this godmother had been found worthy of parenting responsibility by a court in another jurisdiction whose task is also to centre decision-making in the child’s best interests. 137 This woman, older in both years and life experience than this mother, and herself a single parent, would gladly have taken up the task of keeping both the firstborn child and in due course, the younger child, safe from harm, on whatever conditions might be asked of her, whether by the society itself or the court. 138 She had the ability to do that. She had the trust of both parents who themselves had identified fine qualities in her management of her own life and times. Certain physical health problems that had qualified her for provincial disability funding were not insurmountable impediment to her sense of responsibility for the children already in her care. 139 She had a church community in the background as a key support for her parenting endeavours. 140 She could reasonably be expected to obey court-ordered conditions placed on her parenting. CCAS of Toronto v. C. (M.) Katarynych J. 471

141 The ordinary person would have noted her preparedness to involve the child’s mother in their parenting, unless otherwise directed by the court, to give nurture to the child and mother relationship, and to be visible and practical support for the mother as she set herself on the task of closing her domestic relationship with the children’s father. 142 The ordinary person would have found her quite worthy of the child protection agency’s respect. 143 The society could not see the merits within the godmother’s parenting of this child essentially because its lens was too narrow to encompass the merits. The ordinary person might also detect a whiff rising from the society’s evidence that this particular plan, because presented by this father, must somehow be contaminated. 144 Certainly the godmother was left with the conclusion that she had been given short shrift. 145 She emerged from the interaction with the kinship investigation worker quite shaken by the dismissive attitude taken towards her and her parenting. 146 In actual fact, both the godmother and her plan were more than adequate for these children while the parents and society wended their way through the court process. 147 A less blinkered set of eyes would have seen that and acted on it. 148 On the whole of the trial evidence relevant to the investigation, the society’s rejection of that plan appeared to have more to do with the society’s desire for its Crown wardship for these children than with any ob- jectively discernible and fairly explored “deficit” in the godmother. 149 Under this legislation, community based plans for children are prized, and particularly so as a means of providing a more “normal” setting and frequency for child-parent access than can be accomplished for children in foster care. 150 Both procedural and substantive law in these matters provide a judicial set of eyes to determine the merits of a community based plan that has been rejected by the society. It is called motion to vary temporary care. See CFSA s.51(6). 151 That the society’s “temporary” foster care was still the interim order at the opening of trial suggested that no such motion had gone forward at the behest of parents’ counsel, or alternatively, that it had been tried and not been successful, bound as the motions judge is to determinations made on the face of the record. 472 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

In Relation to the Father as Person and Parent 152 The trial evidence shed no meaningful light on what the society had done in outreach to the father to have his input into safety planning. 153 Although clearly interested in the outcome, this father was not present at this trial. As I understood his counsel on that point, father felt that it would be better if he were not there. The reason for that feeling was not given, nor did the trial court ask for reason. 154 Unknown on the trial record is what distance he himself created between himself and the society. 155 Some distance was created for him. At the time of the trial, “present risk” to the children from him was contained, quite literally. He was detained awaiting trial on serious charges. 156 The society’s investigation could nonetheless have benefited from his input. 157 It is part and parcel of getting a pulse from the man directly on how he views his prospects of rehabilitation; in short, whether he sees worth in himself sufficient to continue to make the effort. 158 Within the scheme of the Child and Family Services Act, there can be separation of a parent from a child without a separation of a parent from the child protection agency. 159 Within the scheme of this statute, no parent is deemed unworthy of outreach. 160 It is plain on the trial record that this father, before concerning himself with the parenting of these children, has needed and continues to need to gather into his own rehabilitation efforts, those services specifically equipped to deal with the physical and sexual risk that is alive in his functioning. Not lost in that regard is the risk of his manipulation of the emotions of mother and the children if his dysfunction is not remedied. 161 Lingering in the information about the father, as I understood it from the trial evidence, was indication that he himself had gone through a childhood in need of protection from others. 162 His sense of self on a “go forward” basis is relevant information to a fair and properly informed assessment of “go forward” risk. It would help, for example, to know whether he himself feels a need to “go back” a bit to sort out what happened to him, before he can see and act on the “go forward” tasks. CCAS of Toronto v. C. (M.) Katarynych J. 473

163 It is plain, on the evidence of his probation and parole workers, that he presented to them as a man who wanted to control as much as he could in his rehabilitation. The ordinary man would not find that surprising. Need to control is what sounds the limits on a person’s ability to trust what others have in mind. 164 He sounded his caring about the wellbeing of these children in his safety planning proposal for them. 165 That he did not identify the mother herself as safety plan for the children did not invite the inference suggested by the society in its submissions that the father himself had no confidence in her. 166 It was not unreasonable for these two parents in the circumstances bearing down on them at the time, and trying to create safety planning, to believe that if the children were living elsewhere, with only supervised access to him, the domestic relationship itself and some vestige of family life might be preserved for both them and the children. 167 Having his input into safety planning was a dimension that could have provided input on the following points relevant to ongoing calibration of risk: - The extent to which he could/would cooperate in the severing of his domestic relationship with the mother, if the price of not doing that was loss of their children to both of them; in short, partnering in the problem solving; What he had in planning in clinical interventions to reduce the level of risk in his dysfunction, keeping in mind his unavailability over the last while and presently for anything outside the detention system itself; From his perspective, what would help him navigate the road to rehabilitation; whether opportunity to “touch base” with the society on his progress or invitation for dialogue between those providing services to him and the society. 168 What this man sees on the short and longer term horizon for himself, for these children and for their mother is relevant to a fairly informed ongoing calibration of risk. 169 Whatever future contact might be established between the children and their father in a supervised access fashion depends on what father himself achieves in success in fixing his broken and quite dangerous self. 170 The ordinary person would say that snippets of information from conversation with probation workers that concentrated essentially on the probation officer’s identification of “controlling” features in him and the 474 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

mother’s seeming subservience to him do not replace the first hand “take” that can be achieved in direct dialogue with a parent at the heart of the “risk” assessment. 171 The ordinary person would point out the reality that not every tale told about a person about another is truthfully captured or truthfully dis- seminated, and that the “take’ of his probation workers on him was worthy of discussion with him directly. 172 The ordinary person, schooled in life’s lessons, would say that simple human kindness can keep alive motivation for a parent to be what that parent needs to become. 173 These two children have only one father. What he becomes over time impacts on them. That he is kept out of sight at this time in their life does not rule out a time in the future in which he can be in their sight.

Specific to Confusion about Father’s Court Orders and Mother’s Aiding in Breach 174 I took into account the submissions about the society’s fragility in its understanding of criminal law. 175 It was plain that that the society staff in this case had no real understanding of a surety bail, and indeed, no understanding of the difference between a bail order and a probation order. 176 There is no crime in this mother’s decision to stand surety for this father. “Standing surety” for a person does not implicate the proposed surety in whatever criminal charges required a surety bail. In terms of “surety” status, the fairly informed picture is a law abiding woman with no criminal record, no criminal charges, no criminal investigation in her own life and times, quite ordinarily committing herself to obedience to conditions dictated by the criminal court. Bail release is testament to the court’s satisfaction that an accused person is properly entitled to release into the community. 177 It is reasonable to expect society counsel to take hold of ignorance problems and shore up the education of staff exhibiting the fragility. 178 No child protection agency can afford to display ignorance about aspects of criminal law that dip into child protection work when criminal proceedings or orders are alive in a case. 179 Much of the confusion in this case on this point appeared to flow from failure of the society staff in this case to inform themselves from the orders themselves. Fair dealing in gaining information about condi- CCAS of Toronto v. C. (M.) Katarynych J. 475

tions imposed on a parent by the criminal court is not achieved by snippets of information conveyed by others. It is having in hand a copy of the order itself. 180 The ordinary person would expect a child protection agency, manag- ing a child protection case in circumstances where criminal prosecution of a parent is backdrop, to have any criminal order prominently displayed and considered in the society’s own decision-making, lest the society itself inadvertently put the parent in a position of breach.

On the “Unfair Dealing” Embedded in Misrepresentation 181 There was one aspect of this case where the society slipped into “unfair dealing” without any contribution of either parent to the slide. 182 It is the sort of unfair dealing that attracts the law on costs against a child protection agency. 183 Context is the society’s duty in relation to proper calibration of risk to a child. 184 Regulatory developments over time now require Children’s Aid Soci- eties to make visible their ongoing assessment of a family’s needs by feeding entries into certain computerized documents to help calibrate risk accurately and fairly, taking onto account both the parent’s strengths and weaknesses. See Ontario Family and Child Strength and Needs Assess- ment (Ontario Child Protection Tools Manual Required Tools) 185 In this case, the society injected information into its evaluation of risk documents that the injector knew to be unsubstantiated by any factual basis for the inclusion. 186 The injector provided context for her actions. Driven by lack of information from the mother about herself, and kept at bay by the mother, this family services worker resorted to “guessing” about “risk” factors that “might” be alive in the mother’s life. She chose for her guesses, “risks” of alcohol and drug abuse and mental illness. She inserted those “risks” in the assessment documents of 02/08/2013, 02/07/2014; 15/01/2015. 187 There was not a stitch of evidence of alcohol or drug abuse by this mother in this case. 188 There was not a stitch of evidence of mental illness. 189 I also noted that in the document of 15/01/2015, this same social worker inserted as a “risk” the paucity of the mother’s social support system. That entry was made even though the social worker knew that the godmother of the older child was regularly accompanying the mother 476 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

in her visiting with the children. It was also readily ascertainable by the beginning of 2015 that mother had a church community. 190 The only “risk factor” that ever merited a tick box on these evaluation of risk computer tracking documents was the one reserved for a parent’s allegiance to a partner who presents risk of harm to a child. 191 The society itself acknowledged at trial that the mother, throughout the whole of child-parent access parcelled out to her over the course of the litigation, had displayed fine parenting ability. 192 Polluting that “take” on the mother by imaginings about potential alcohol and drug abuse issues and mental illness left sitting in its records is serious maligning. 193 In cross-examination, the injector admitted the injection of unsubstantiated risk information into the documents used to intelligently and carefully and truthfully calibrate risk. 194 She admitted in cross-examination that she did not indicate anywhere in her computer inputting that any of her entries were “guesses” and warns a hapless reader that there was no factual basis for them. 195 On plain read of the risk assessment documents now in evidence in the trial, these “guesses” were carried forward from the initial document into succeeding “risk assessment” documents. 196 The end result was a serious misrepresentation of the mother, and a memorializing of that distorted picture in the society’s records. 197 The injector seemed oblivious to the reality that false information sitting in a child protection file about a parent is serious slide into unfairness. That reaction was concerning. The ordinary person calls that sort of conduct a smearing of a parent. 198 Child protection agencies are expected to steer clear of smearing. A child protection agency is not permitted to manipulate the calibration of risk to a child by loading the inventory with information that is untrue about that parent. Keeping the level of protective intervention proportionate to the need for it is not an act of choreography. 199 That conduct is condemned because others within the society’s ranks reading that information, will be misled. They will wrongly assume it to be substantiated and draw conclusions about the parent that are wholly undeserved. 200 Sound decision-making, whether within the society itself or by the court, depends on the decision-maker not being misled. CCAS of Toronto v. C. (M.) Katarynych J. 477

201 That the false information sat undisturbed through the trial and until brought to light by the mother’s counsel was particularly disturbing. It suggested that the society’s own supervisory checks and balances, including the vigilance of its lawyers, had not identified the wrong and purged the record of the smearing. 202 At the close of trial that smearing sat in the society’s record-keeping. The ordinary person would have a problem with that. The ordinary person would, in fact, wonder what else in that social worker’s information to others, including the court itself, was resting in “guesses” and imaginings. 203 The ordinary person appreciates that in any endeavour that depends for its outcome on the nature and quality of human interaction, mistakes get made from time to time. 204 That ordinary person would warn that it is never enough in child protection work to rest in a slough off kind of stance that “mistakes happen”, pointing out that more is expected of servitors of this statute. If there is to be fair dealing, prompt correction of mistakes matter. If there is misrepresentation of a parent in the society’s record, fair dealing requires a cleansing. 205 In that regard, the court had directed the society at the close of trial to re-do the risk assessments to obtain an accurate “take” on the risk, and to take the steps needed to ensure that the falsified documents were purged from the society’s record of this mother. 206 Unknown at the time of this decision is whether anything was ever done in that regard.

Decision 207 Although there are lessons to be learned from this case that need not be accompanied by costs sanctions, this maligning of this mother is in a different league. 208 It was a wholly uncalled for ballooning of risk. 209 Costs are fixed against the Catholic Children’s Aid Society of To- ronto in the amount of $5,000. 210 Those costs are to be paid forthwith to counsel for the mother in trust. 211 The Direction to the society to purge its record of this false information is reiterated. 212 The mother’s costs claim is otherwise dismissed. 478 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

213 An order will issue accordingly. 214 This decision is to be released to counsel today by fax transmission and the original filed in the Endorsement record. Application granted. CCAS of Toronto v. S. (N.) 479

[Indexed as: Catholic Children’s Aid Society of Toronto v. S. (N.)] Catholic Children’s Aid Society of Toronto, Applicant and N.S. and P.R., Respondents Ontario Court of Justice Docket: C30502/04 2015 ONCJ 388 S.B. Sherr J. Heard: July 15, 2015 Judgment: July 16, 2015 Family law –––– Children born outside marriage — Affiliation and support — Evidence — Blood, DNA and tissue tests –––– Child tested positive for cocaine at time of birth — Child was placed in care of children’s aid society as result of protection issues including drug use and domestic conflict — Man brought motion for DNA testing to determine if he was biological father of child, and for order requiring society to pay costs of test — Motion granted — Leave to obtain DNA testing was ordered and society was to pay for cost of testing — There was no provision in Child and Family Services Act that permitted court to order DNA testing — Section 10(1) of Children’s Law Reform Act (CLRA) gave court jurisdiction to order DNA testing, as this was civil proceeding in which parentage of child had to be determined — It was in best interests of child to order DNA testing — It was important for child’s psychological well- being to know if man was his biological father — Court had jurisdiction to determine who would pay for costs of testing pursuant to s. 10(2) of CLRA — Mother and man could not afford DNA testing, but parentage issue was important. Family law –––– Children in need of protection — General principles — Ju- risdiction of courts — Jurisdiction to make orders — Miscellaneous –––– Child tested positive for cocaine at time of birth — Child was placed in care of children’s aid society as result of protection issues including drug use and domestic conflict — Man brought motion for DNA testing to determine if he was biological father of child, and for order requiring society to pay costs of test — Motion granted — Leave to obtain DNA testing was ordered and society was to pay for cost of testing — There was no provision in Child and Family Services Act that permitted court to order DNA testing — Section 10(1) of Children’s Law Reform Act (CLRA) gave court jurisdiction to order DNA testing, as this was civil proceeding in which parentage of child had to be determined — It was in best interests of child to order DNA testing — It was important for child’s 480 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

psychological well-being to know if man was his biological father — Court had jurisdiction to determine who would pay for costs of testing pursuant to s. 10(2) of CLRA — Mother and man could not afford DNA testing, but parentage issue was important. Cases considered by S.B. Sherr J.: Children’s Aid Society of Brant v. H. (H.) (2007), 2007 ONCJ 477, 2007 Cars- wellOnt 6804, 45 R.F.L. (6th) 457, [2007] O.J. No. 4083 (Ont. C.J.) — considered F. (M.) v. S. (R.) (1991), 83 D.L.R. (4th) 717, [1991] O.J. No. 2454, 1991 Cars- wellOnt 3165 (Ont. Prov. Div.) — referred to Statutes considered: Child and Family Services Act, R.S.O. 1990, c. C.11 Generally — referred to Children’s Law Reform Act, R.S.O. 1990, c. C.12 s. 10 — considered s. 10(1) — considered s. 10(2) — considered

MOTION by man for DNA testing to determine if he was biological father of child, and for order requiring society to pay costs of test.

Karen Ksienski, for Applicant Peter Hutcheon, for Respondent, N.S. Minipreet Bhattia, for Respondent, P.R.

S.B. Sherr J.: Part One - Introduction 1 The respondent, P.R., has brought an oral motion seeking DNA testing to determine if he is the biological father of the subject child, K.S. (the child) in this child protection proceeding. He also seeks an order that the Catholic Children’s Aid Society of Toronto (the society) pay for the costs of the testing. 2 The respondent, N.S., is the mother of K.S. She does not oppose the father’s motion, provided that she does not have to pay any of the costs of the DNA testing. 3 The society does not consent to or oppose the father’s motion. 4 There are two preliminary jurisdictional issues for this court to determine in ruling on this motion: i) Does the court have jurisdiction to order DNA testing? CCAS of Toronto v. S. (N.) S.B. Sherr J. 481

ii) If so, does the court have jurisdiction to order the society to pay the cost of the testing?

Part Two - Background facts 5 K.S. was born on July 6, 2015. 6 K.S. remains in the hospital. His urine was tested positive for cocaine at the time of his birth. He is currently having drug withdrawal symptoms. 7 K.S. was apprehended by the society on July 10, 2015. The society has raised protection issues, including drug use by N.S. and domestic conflict between N.S. and P.R. 8 The society issued this protection application on July 15, 2015, seeking orders to find K.S. in need of protection and to place him in the care of the society for six months. 9 On July 15, 2015, the respondents did not oppose a temporary without prejudice order being made placing K.S. in the care of the society, with access in the discretion of the society, including the level of supervision.

Part Three - Jurisdiction to order DNA testing 10 The Ontario Court of Justice is a statutory court. It must derive its jurisdiction from a statutory source. It has no parens patriae jurisdiction. 11 There is no provision in the Child and Family Services Act (CFSA) that permits the court to order DNA testing. 12 However, the analysis does not end there. Subsection 10 (1) of the Children’s Law Reform Act (CLRA) reads as follows: Leave for blood tests and DNA tests 10. (1) On the application of a party in a civil proceeding in which the court is called on to determine a child’s parentage, the court may give the party leave to obtain blood tests or DNA tests of the persons who are named in the order granting leave and to submit the results in evidence. 13 The court finds that subsection 10 (1) of the CLRA gives this court jurisdiction to order DNA testing. This is a civil proceeding and the court is being called upon to determine the parentage of K.S. 14 This finding follows the ruling of Justice L.P. Thibideau in Children’s Aid Society of Brant v. H. (H.), [2007] O.J. No. 4083 (Ont. C.J.). In that case, the society sought an order to force a putative father to 482 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

obtain DNA testing. In determining that the court had jurisdiction to grant this request, Justice Thibideau wrote at paragraphs 9 and 10 of his decision: 9 The legislative scheme in the Children’s Law Reform Act deals with child custody and access and the status of children born in or out of marriage, or adopted, including circumstances in relation to parental association and interaction. At first glance, it is somewhat unusual that a provision in one particular statute should be the enabling legislation with respect to other statutes dealing with child related issues. However, the wording of section 10 is precise in referring to “a civil proceeding”, not necessarily a proceeding under the Children’s Law Reform Act. The statutory determining factors are that a party must request the relief, there must be an issue or something connected to an issue in the action requiring a determination of parentage. Had the legislators intended the remedy to be available only in Children’s Law Reform Act proceedings, the wording would have been something like “on the application of a party in a proceeding under this Act ..... Had the legislators intended that only a parent or prospective parent, or only a person, had standing, they would have said so. The wording of section 10 appears to be deliberately broad and empowering. 10 The society is a party in this proceeding. The proceeding is civil in nature. The court is called upon to determine parentage for an os- tensibly permissible and valid reason - to safeguard the emotional- psychological integrity of a child the subject of the application and to determine his future circumstances with respect to care and contact with specified individuals. 15 Justice Thibideau provided, in paragraphs 13-16 of his decision, numerous examples where section 10 of the CLRA was applied in cases being determined under other statutes, writing as follows: 13 In a divorce proceeding where maintenance (support) was an issue, a paternity blood test was ordered to help determine that issue, a divorce proceeding being a civil proceeding as contemplated by section 10 of the Children’s Law Reform Act. See H. v. H. (1979), 25 O.R. (2d) 219, 100 D.L.R. (3d) 364, 9 R.F.L. (2d) 216, 1 F.L.R.A.C. 543, [1979] O.J. No. 4288, 1979 CarswellOnt 387 (Ont. H.C.). 14 In a superior court claim related to a civil matter involving claims of breach of contract, constructive trust and unjust enrichment related to historical child care, the court ordered paternity testing pursuant to section 10. See M. v. H. (1999), 2 R.F.L. (5th) 424, [1999] O.J. No. 4360. 1999 CarswellOnt 3731 (Ont. Fam. Ct.). CCAS of Toronto v. S. (N.) S.B. Sherr J. 483

15 In a matter involving a multiplicity of proceedings, blood tests were sought and ordered pursuant to section 10, even though there was already declaration of parentage between the parties pursuant to the Children’s Law Reform Act. See Mask v. Cuillerier (2003), 47 R.F.L. (5th) 110, [2003] O.J. No. 3280, [2003] O.T.C. 754, 2003 CarswellOnt 3158 (Ont. S.C.), approving J.R. v. L.L.G., [1998] O.J. No. 2903, 72 O.T.C. 141, 1998 CarswellOnt 3153 (Ont. Fam. Ct.). 16 Paternity testing was ordered or approved of during a proceeding regarding a confirmation hearing pursuant to the Reciprocal Enforce- ment of Support Orders Act, R.S.O. 1990, c. R-7.1 See Baugh v. Sam- uels (2001), 24 R.F.L. (5th) 270, [2001] O.J. No. 5614, 2001 Cars- wellOnt 4881 (Ont. C.J.). 16 In paragraph 21 of his decision, Justice Thibideau discusses the threshold for proof in determining whether DNA testing should be ordered, writing as follows: 21 The threshold for proof of a circumstance in which the court is called upon to determine a child’s parentage is not particularly high where the evidence is that the sole consideration is the child’s emotional- psychological well being. Here the child’s ambivalence with respect to the relationship is itself sufficient. To put it another way, even when paternity is statutorily presumed, testing will be ordered to rebut the presumption when the interests of a child in ascertaining paternity is concerned. See Fox v. Dalzell (1982), 137 D.L.R. (3d) 143, 28 R.F.L. (2d) 174, [1982] O.J. No. 666, 1982 CarswellOnt 286 (Ont. Prov. Ct., Fam. Div.). 17 It is in the best interests of K.S. to order DNA testing. It will be important for his psychological well-being to know if P.R. is his biological father and the results of the testing could determine if P.R. will continue to have a relationship with him. Determination of parentage will also likely determine if P.R. should continue to participate in this case. Leave to obtain DNA testing will be ordered.

Part Four - Jurisdiction to order the society to pay for the DNA testing 18 Having determined that section 10 of the CLRA can be applied to child protection cases, the court finds that it has jurisdiction to determine who will pay for the costs of the testing. Subsection 10 (2) of the CLRA provides this authority. See: F. (M.) v. S. (R.), [1991] O.J. No. 2454 (Ont. 484 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

Prov. Div.) per Justice James Nevins. Subsection 10 (2) of the CLRA reads as follows: Conditions 10 (2) The court may impose conditions, as it thinks proper, on an order under subsection (1). 19 The respondents are of modest means and cannot afford the costs of the DNA testing. The parentage issue is important to determine for K.S. and important to resolve for the conduct of this case. It is a bona fide request. The society does not oppose paying for the cost of the testing. 20 The society shall arrange and pay for the DNA testing to determine if P.R. is the biological father of K.S.

Part Five - Orders 21 Orders will go on the following terms: a) Leave is given for DNA testing to be conducted to determine if P.R. is the biological father of K.S. b) The society will arrange and pay for the costs of the DNA testing. c) The results of the DNA testing will be admitted into evidence, without the need to call the maker of the testing report. 22 The court thanks counsel for the society for her efforts in quickly providing the court with the relevant case law. Motion granted. Children’s Aid Society of Algoma v. K. (A.) 485

[Indexed as: Children’s Aid Society of Algoma v. K. (A.)] Children’s Aid Society of Algoma, Applicant and A.K. and J.R., Respondents Ontario Court of Justice Docket: Sault Ste. Marie 97/15 2015 ONCJ 521 R. Kwolek J. Heard: August 4, 2015 Judgment: August 11, 2015 Family law –––– Children in need of protection — Application for temporary custody — Grounds for temporary order — General principles –––– There were concerns with mother’s mental health and condition of home — There was insufficient food in house and there were concerns with children’s hygiene — Mother was involuntary patient at hospital for period for bizarre and paranoid behaviour — Children internalized mother’s behaviour — Mother used marijuana regularly — Children were apprehended from mother — Mother exercised supervised access — Mother was currently exercising unsupervised access to one of children — Father exercised access — Mother’s mental health stabilized and cooperated with children’s aid society — There was no evidence mother continued to use illicit substances — Mother planned to move to Alberta with children — Mother completed parenting programs — Society sought society warship for six months — Application granted — Children were to remain in temporary care of society with mother having interim access being mixed of supervised and unsupervised — Mother was granted increased access on graduated basis — Father’s access as on same terms as previously — Children could not be safely returned to mother under terms of supervision — Children could not be safely placed with father — There was very little information about father — Mother use of marijuana impacted her ability to care for children — Plan to move to Alberta was not viable — Mother was well on her way to having children returned to her care if she maintained her mental stability for next month, even with increasing amounts of access, continued to attend access regularly, continued to access her supports, maintained her residence in clean and hygienic state and met regularly with, and cooperated with, society worker. Cases considered by R. Kwolek J.: Catholic Children’s Aid Society of Toronto v. O. (J.) (2012), 2012 ONCJ 269, 2012 CarswellOnt 5583, 20 R.F.L. (7th) 471, [2012] O.J. No. 2016 (Ont. C.J.) — referred to 486 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

Children’s Aid Society of Hamilton v. D. (B.) (2012), 2012 ONSC 2448, 2012 CarswellOnt 4729, 20 R.F.L. (7th) 301, [2012] O.J. No. 1775 (Ont. S.C.J.) — referred to Children’s Aid Society of Ottawa-Carleton v. T. (2000), 2000 CarswellOnt 2156, [2000] O.J. No. 2273 (Ont. S.C.J.) — referred to Family and Children’s Services v. O. (R.) (February 20, 2006), J.T. Lynch J. J., [2006] O.J. No. 969 (Ont. C.J.) — referred to Statutes considered: Child and Family Services Act, R.S.O. 1990, c. C.11 s. 1(2) — referred to s. 37(2)(b)(i) — considered s. 37(2)(b)(ii) — considered s. 37(2)(f) — considered s. 37(2)(g) — considered s. 51(2) — considered s. 51(2)(a) — considered s. 51(2)(b) — considered s. 51(3) — considered s. 51(3.1) [en. 2006, c. 5, s. 8(3)] — considered s. 51(3.2) [en. 2006, c. 5, s. 8(3)] — considered s. 51(7) — considered Mental Health Act, R.S.O. 1990, c. M.7 Generally — referred to

APPLICATION by children’s aid society for temporary care and custody of children.

J. Mealey, for Applicant, Society E. McCooeye, for Respondent, A. K. J. R., for himself D. Stone, for Office of the Children’s Lawyer

R. Kwolek J.: Summary of Case 1 This case deals with the temporary care and custody of two children N. and A. who are 11 and nine years of age respectively. The children were apprehended from the care of their mother on April 28, 2015. In their application, the Children’s Aid Society is seeking society wardship for a period of six months. They are relying on the following sections of the Child and Family Services Act: sections 37(2)(b)(i) and (ii) and 37(2)(f) and (g). Those sections deal with a risk of physical harm of the Children’s Aid Society of Algoma v. K. (A.) R. Kwolek J. 487

children caused by the parents failure to adequately care for, or being involved in a pattern of neglect in caring for the children, as well as a risk of emotional harm or allegations that the children have suffered emotional harm as a result of the parents’ lack of care or neglect of care. The main issue in this case is the mother’s mental health and how that impacts on her ability to care for the children and whether the children can be placed with her or other potential caregivers.

Summary of Facts 2 Child protection authorities have been involved with this family on a number of occasions in the past. On July 3, 2007, the Edmonton City Police received a report that there was a two-year child left alone in a schoolyard playground. He was in a diaper with pink flip-flops and had a strong body odor. A community member was with the child for one-half an hour and no parent arrived to supervise. The mother was found and reported that the child sneaked out of the residence when “the mother passed out”. It does not appear that the child was apprehended at the time and the Alberta child protection authorities were involved with the family from July until December 2007 when they closed their file. 3 The local Children’s Aid Society was also involved as a result of a complaint by a senior kindergarten teacher on January 14, 2011, that the child A. had been spanked. It was determined that such referral did not warrant a child protection investigation. 4 A further report was received on December 2, 2011 at the same elementary school that both children had come to school without eating breakfast and had no food for lunch. It was reported the children would attend school in the same clothes for many days in a row and the children appeared dirty and unkempt. When a CAS worker arrived at the parents’ home on December 7, 2011, the worker observed a strong odour of marijuana present, drug paraphernalia was found in the home, and the home was generally in a dirty and unsatisfactory state. The children were apprehended on that date but returned the next day to the care of the mother and father. The parents cleaned the home to a satisfactory state and agreed to sign a six month family service agreement to address concerns including drug use, conditions of the home, past trauma of the mother, lack of food in the home and the father’s anger management. 5 On May 8, 2012 the principal of the elementary school where the children were attending, contacted the society to report bizarre behaviour of the mother. The mother attended the school for a meeting, was visibly 488 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

upset, and stated she had “spoken with a lawyer in Toronto and was going to sue the referral source as the referral source had called on six other families”. The mother when leaving the school yelled at the teacher. 6 However, on July 8, 2012 the six-month family service agreement expired and their file was closed.

Most Recent Events 7 The Society became re-involved with this family in April 2015, when they were contacted by Constable Trevor Pluss of the Sault Ste. Marie City Police Department. He had investigated complaints made by the mother the day before about the paternal aunt attending at the children’s school to forcibly remove the children from the school. The mother had also contacted the school on the same date advising that the father had planted drugs in the children’s backpacks. 8 On the next day on April 28, 2015 Constable Pluss reported that he was contacted by the mother who indicated she had not slept all night; people were hiding beside the mother’s house and videotaping the mother. The mother appeared paranoid, confused and was rambling and not making sense. As a result of the comments of the mother the officer contacted the Children’s Aid Society. 9 When the Society worker attended to speak to the mother, the mother advised that they were moving and that the mother was being followed and videotaped. She confirmed previous statements that she made to the police officer that the paternal aunt was trying to take the children and the father had planted marijuana in the children’s pockets. She also made further statements that exhibited disturbed thought and paranoia. 10 The mother appeared to be packing her belongings. There were several mattresses in the living area near the front door. There was insufficient food in the home to feed the mother and the children. The bed- rooms upstairs did not appear to be used. There appeared to be at least three dogs and three cats in the home. There were six holes in the walls and the front door was broken. The mother and children appeared dirty and emitted a foul body odour. 11 The children, when interviewed, seemed to support some of the comments made by the mother and repeated some of the claims, many of which were bizarre and did not make sense. Children’s Aid Society of Algoma v. K. (A.) R. Kwolek J. 489

12 Given the mental state of the mother and the inappropriate condition of the home, the children were apprehended from the care of the mother on April 28, 2015. 13 The principal at the children’s school confirmed that the children accessed the breakfast program every day and she would send the children home with food for the weekends. The family had very limited resources. Even prior to apprehension the children did well in school but have made many improvements since coming into care. The principal further advised that the mother generally seemed appropriate and would attend the school at the end of the day and walked the children home. The principal on Friday, April 24, 2015 noticed a change in the mother when the mother attended the school and appeared rattled. On Monday, April 27, 2015 the mother stated to school authorities that the father had planted drugs in the children’s pockets and backpacks. On April 27, 2015 at approximately 11:30 a.m. the mother took the children home removing them from the school. This was the first time the mother had removed the children from school during the day. 14 The mother was taken to Sault Area Hospitals on April 28, 2015 and was eventually seen by a physician. She was “formed” under the Mental Health Act and stayed as an involuntary patient at the hospital until her discharge on May 2, 2015. The mother did mention at that time that she wanted her children to be cared for by the maternal grandmother, C. R., who lived in Alberta. 15 The father, J. R., called the society worker on April 29, 2015 indicating he was concerned about the safety and well-being of the children. The father reported that on Saturday, April 25, 2015 the mother “went all weird”. The mother exhibited bizarre and paranoia behavior. The father admitted that the mother did use marijuana frequently and that he would, on occasion, also use marijuana. The father also confirmed he would be communicating with the maternal grandmother C. R. with respect to a potential plan to care for the children as the father did not have a residence and could not care for the children at that time. 16 It is not disputed that the mother demonstrated irrational and bizarre behavior at the end of April 2015 and the children needed to be apprehended.

Events Since Apprehension 17 The mother remained in the hospital until May 2, 2015 when, according to the mother she was discharged. The mother in her initial affidavit 490 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

dated May 29, 2015 denied using drugs but claimed that the father did drugs. The mother alleged that she was the sole caregiver of the children and did not have much assistance from the father. Her initial affidavit dated May 29, 2015 was somewhat rambling. At tab six the mother filed her discharge medication summary showing that she was prescribed Lorazepam (Ativan), every hour, as required. 18 The Society worker attended Sault Area Hospital on May 1, 2015 and was advised by the inpatient social worker that the psychiatrist Dr. Mar- shall had no concerns with the mother and it was just a “build-up of stress”. The mother advised the Society worker that she would be attending Women in Crisis and was hoping to get the children back. 19 The mother did meet with the child protection worker on May 11, 2015 inquiring what she needed to do to get her children back. A social worker at the Women in Crisis center confirmed on May 12, 2015 that staff continued to have concerns about the mother’s mental health. The mother had been hearing voices and the mother would speak to these voices. The mother again met with the worker on May 15, 2015 and wanted to know exactly what she needed to do in order to get the children back. The mother attended on May 19, 2015 at the Society office unannounced. She once again requested to know what she needed to do to get the children returned to her. She had been told on previous occasions that the mother needed to get a full mental health assessment and address issues with her mental health and follow recommendations of her psychiatrist including any treatment plan. 20 On May 20, 2015, the Society worker received a call from a psychiatric nurse who confirmed that the mother appeared to have some significant mental health issues and expressed some paranoid ideation. 21 On May 28, 2015, the CAS worker was advised by an individual at Women in Crisis that when the mother was stressed she appears scat- tered. Staff at the shelter also confirmed that the mother had conversations with the paternal grandmother, which had been appropriate, and the grandmother appeared to be a support to the mother. It was also reported by a staff member that the mother functions well at Women in Crisis. 22 On June 5, 2015, the psychiatric nurse at the hospital advised that there was no change in the mother’s treatment plan and there was no concern that the mother would harm herself or the children and that she would be meeting with the mother that afternoon. 23 On June 12, 2015, the mother met with the current CAS worker and the new worker who would be taking over the file. Once again the Children’s Aid Society of Algoma v. K. (A.) R. Kwolek J. 491

mother wanted to know what was expected of her to have the children returned to her care. She was advised that she needed to address the mental health issues as well as concerns about neglect of the children. At that meeting, the worker noted that the mother appeared “quite vacant, unemotional and spoke very slowly in a monotone voice.” 24 On June 16, 2015, the mother met with the CAS worker and advised that she was no longer required to meet with the psychiatrist. She indicated she continued to be interested in counseling services with the Ca- nadian Mental Health Association but there was a waiting list. She advised that she was utilizing the support services at Women in Crisis. 25 The worker met with the father on June 23, 2015 who advised that it was not his intention to take the children from their mother but wondered if it was a possibility that the children could be returned to him in the interim while the mother was bettering herself. He confirmed that the parties separated two years ago but they had been living together for financial reasons up until three days prior to the apprehension. He confirmed that he was aware that the mother planned to move to Alberta with the children. He was not against the mother’s plans to relocate. He stated he was an alcoholic who has been sober for seven years; he believes he has anxiety problems; he has never hit the mother or the children; the holes in the walls are from him wanting to do renovations not from punching walls. He advised that the mother used approximately one gram of marijuana every day to calm herself down and he would buy it for her. He claimed he also used approximately a gram a week but he quit at the beginning of May 2015. He confirmed that the mother “is not much of a drinker” and that the mother used to shake a lot. He made a comment that the mother had been coming home with Subway cards since January 2015 saying “these are my clues”. 26 On June 25, 2015, the CAS worker was advised by a counselor at Women in Crisis that there were no current concerns for the mother’s mental health. She also confirmed there was no indication the mother was presently engaging in the use of marijuana. On June 30, 2015, a second counselor at Women in Crisis advised that the mother has never shared anything that made sense regarding domestic violence. She also confirmed that the mother’s behaviors have stabilized and she has few stresses at the Women in Crisis Centre. 27 The worker met with the mother and a counselor at Women in Crisis on July 6, 2015. The mother confirmed she obtained a bachelor apartment with a cot for the child N. and a queen-sized bed for herself and the 492 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

child A. The mother has been attending bi-weekly workshops on self- esteem at Women in Crisis. The mother appeared guarded about her mental health issues. On that date she indicated she does not hear voices but she does talk to God which she did not view as a mental health concern. On July 6, 2015, the mother presented as happy, smiling and up- beat. On that date she provided copies of her certificates of completion for the Triple P Positive Parenting Program including a seminar on raising resilient children; a seminar on the power of positive parenting; a seminar on raising confident, competent children. On further questioning by the worker, the mother confirmed that she used marijuana prior to apprehension and stated that the father bought it for her so that she would calm down. The worker felt the mother took no responsibility for her drug usage. However, the mother indicated that she had scheduled an intake with the addictions treatment clinic for July 8, 2015. On the same date, the crisis counselor who accompanied the mother confirmed the mother’s mental health had stabilized and she was not exhibiting any mental health concerns. There was no indication the mother used marijuana while staying at Women in Crisis. The crisis worker did confirm that while the mother is awaiting counseling services to commence at the Canadian Mental Health Association, she can continue to access services at Women in Crisis while residing in her new residence. 28 On July 13, 2015, the mother once again met with the Society worker who questioned her specifically about some of the bizarre statements that she had made at or about the time of apprehension. On that date, the mother did not appear to suffer from paranoia. The mother did not acknowledge or realize that her previous thought behavior had been bizarre but seemed to deflect blame for the statements that she had made on the children.

Access Visits 29 The mother initially was granted supervised access visits with the children one day per week from 4 to 7 p.m. She has attended all the access visits available to her since they have commenced. The access visits went well. The mother was generally attentive to the children’s needs and affectionate. She brought appropriate snacks to the children during the visits. The children appeared to enjoy the visits but the departures were particularly difficult for the mother and children. The mother appeared receptive to advice being given to her by the access workers. The mother was exercising telephone access as well with A. The first few phone calls had gone well but on May 22, 2015, the foster parent had Children’s Aid Society of Algoma v. K. (A.) R. Kwolek J. 493

to terminate the call because of some bizarre comments the mother made that the child was 50 percent blind and did not need glasses. 30 On May 25, 2015, the access visit with the child A. went fairly well although the mother was quite quiet, appeared quite vacant and lacked emotion while talking to the child.” 31 On May 28, 2015, the mother’s visit appeared to go well with the mother remaining close to the children and focusing and interacting with them. She was however very quiet during this visit. All three family members were crying prior to the end of the visit but the mother reas- sured the children. On July 9, 2015, the mother was approved to have unsupervised community access to the child A. and is apparently currently exercising some unsupervised access. 32 The father exercised one supervised visit at the Society access center and has been regularly attending access visits at the paternal great-aunt’s residence. The father has attended all visits available to him since access commenced on June 15, 2015. The children appeared to enjoy the access visits with their father, however, as with the mother, the departures were particularly difficult for the father and children.

The Children 33 An affidavit was filed by a children’s services worker for the Society. Both children seemed to be doing well in their respective foster homes with no significant behavioral or emotional issues. The younger child’s report card had A’s, B’s and C’s. She also inquired about living with her grandmother in Alberta. The older child N. prior to his admission into care, had issues with very poor body odor during this past year. Prior to his admission into care he was going to the breakfast program every day at school and he rarely had a lunch. He is a bright child with no learning needs. 34 N. had expressed some views to the foster parents about adult concerns such as the child tax credit and appeared to voice some of the same concerns and paranoid ideation that his mother had. The foster mother indicated that the child appeared to be missing lots of social skills and had some overeating issues. He did not have any other extreme behaviors, only some fears and irrationalities. He had made significant improvements since he first came into care and is not nearly as fearful of things as he was upon placement. He was no longer afraid of the dark and does not need to have his bedroom door closed. 494 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

C. R. - The Maternal Grandmother 35 It appears that immediately after apprehension and in May 2015 both the mother and maternal grandmother C. R. requested a kinship assessment. The maternal grandmother resides in Alberta and it was confirmed by the mother and father that the mother’s plans were to move to Alberta to be closer to her mother and other supports even prior to apprehension. 36 The society, in the affidavit of Kim Bauer dated July 16, 2015, at paragraph 49 states: should the grandmother be approved, the society believes this [mother living with the maternal grandmother with the children] could be an appropriate solution which would allow the children to live with her mother in a safe setting. The society would like to see the children start school in the fall in the care of the grandmother should the grandmother be approved. 37 On July 13, 2015, the Alberta authorities indicated that the kinship assessment likely would not be completed until late September or early October 2015. They also advised that the grandmother’s home could be set up as an emergency kin home if certain things such as a clean envi- ronmental safety assessment for caregivers, a clean criminal record and intervention check were completed. 38 It appears that the mother’s consistent plan, as expressed to the psychiatric nurse Diane Turco, as confirmed by the father of the children, and as confirmed by the most recent affidavit of the mother dated July 28, 2015 was that she move to Alberta prior to the beginning of the school year. The child A. inquired about moving to be with her grandmother. 39 The mother has advised that her former spouse controls her bank account. The mother does not appear at this time to appreciate the true nature of her illness. She appears to lack insight as to the nature and extent of the illness although she has stabilized, has completed certain parenting programs, and has accessed supports from Women in Crisis. Her mother appears to be a good support but unfortunately direct evidence from the maternal grandmother herself is lacking as to the nature and extent of her support and whether or not she supports the plan that the mother and children reside with her in Alberta. 40 Currently the mother’s access to the children is very minimal. Her mental health has stabilized. She has attended regularly for visits and has cooperated and met with the CAS worker on a regular basis. Children’s Aid Society of Algoma v. K. (A.) R. Kwolek J. 495

Legal Analysis 41 The legal test for the court to apply on this motion is set out in subsections 51 (2), (3), (3.1) and (3.2) of the Child and Family Services Act (the Act) which read as follows: Custody during adjournment 51(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child, (a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part; (b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; (c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or (d) remain or be placed in the care and custody of the society, but not be placed in, (i) a place of secure custody as defined in Part IV (Youth Justice), or (ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety. Criteria (3) The court shall not make an order under clause (2)(c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2)(a) or (b). Placement with relative, etc. (3.1) Before making a temporary order for care and custody under clause (2)(d), the court shall consider whether it is in the child’s best interests to make an order under clause (2)(c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community. 496 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

Terms and conditions in order (3.2) A temporary order for care and custody of a child under clause (2)(b) or (c) may impose, (a) reasonable terms and conditions relating to the child’s care and supervision; (b) reasonable terms and conditions on the child’s parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child and (c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services. 42 At a temporary care and custody hearing, the onus is on the society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondents, it is more probable than not that he or she will suffer harm. Further, the onus is on the society to establish that the child cannot be adequately protected by terms of conditions of an interim supervision order. See: Children’s Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (Ont. S.C.J.). Simply stated, this is a two-part test that the society has to meet. 43 A court must choose the order that is the least disruptive placement consistent with adequate protection of the child (subsection 1(2) of the Act): Children’s Aid Society of Hamilton v. D. (B.), 2012 ONSC 2448 (Ont. S.C.J.) (CanLII). 44 The degree of intrusiveness of the society’s intervention and the interim protection ordered by the court should be proportional to the degree of risk. Catholic Children’s Aid Society of Toronto v. O. (J.), 2012 ONCJ 269 (Ont. C.J.) (CanLII). 45 Subsection 51 (7) of the Act permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstance. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence. Family and Children’s Services v. O. (R.), [2006] O.J. No. 969 (Ont. C.J.). Children’s Aid Society of Algoma v. K. (A.) R. Kwolek J. 497

46 I am not ready today to return the children to the care of the mother. I am not satisfied, based on the information before me, that I can safely return the children to the mother under terms of supervision. I am similarly not satisfied that the children can be safely placed with the father at this time. There is very little information that we have about the father except for unfavourable comments from the mother. 47 The reasons for my inability to return these children today are as follows: 1) The mother has recently been hospitalized as a result of her mental illness as an involuntary patient for exhibiting bizarre and paranoid behaviour; 2) The mother’s delusional behaviour has impacted the children to such an extent that they had internalized such behaviour themselves; 3) There appeared to be a deteriorating situation since at least the start of the year relating to the children’s hygiene, especially that of N.; 4) There appeared to be insufficient food in the household for several months and the children had to rely on food sent home and provided by the school. The children are not in school and will not have this support at the present time; 5) The mother’s delusional behaviour and paranoid beliefs seem to have continued, although admittedly to a lesser extent, at least until the end of May, 2015; 6) Although the mother has had the residential and counselling support of the Women in Crisis Centre, she has now apparently moved out of that supportive environment to an apartment of her own. 7) The mother had been regularly using marijuana which impacted on her ability to care for the children for an extended period of time. I am not satisfied at this juncture that she will not revert to such use if the children are returned immediately to her. 8) The mother has had the children for very short periods of access and given the above factors it is important that the mother is able to cope with increased periods of contact with the children 9) The mother’s plan was to move to Alberta and I am not satisfied based on the evidence before me that that is a viable plan or that she has the resources available to her to make that move. 498 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

10) When the children were apprehended the home was in a state of disarray and although the mother was having difficulty maintaining the home in a proper state of cleanliness, she had three cats and three dogs in the home. 48 I had expressed a recommendation, when I advised that I would not immediately deliver my decision, that the mother should be granted much more extensive access. The court would like to see whether or not the mother is able to tolerate greater periods of access. The court would like to see if the mother can maintain her mental stability for the next month. There does not appear to be a chronic longstanding history of serious mental issues although there are some historical concerns. The mother has historically experienced some difficulty in maintaining the home in a proper state and maintaining proper hygiene for the children. I would not like the mother to be overwhelmed with the return of the children only to have the children re-apprehended. I am not yet satisfied that the children are able to be returned safely to the mother at this time. I currently believe, due to the factors described above, that there are reasonable grounds to believe that there is a risk that the children are likely to suffer harm and that the children cannot be adequately protected by an order under 51(2)(a) or (b) of the Child and Family Services Act. 49 The father apparently lived in the home with the mother and children until just before intervention and must bear some responsibility for his failure to act to improve the circumstances of the children. Based on the evidence before me, I am satisfied that the Society has similarly proven a risk of harm should the children be placed with the father and such risk cannot be ameliorated by the imposition of conditions. 50 I have insufficient material before me to place the children with the maternal grandmother at this time. 51 However, I see the mother as being well on her way to having the children returned to her care if she maintains her mental stability for the next month, even with increasing amounts of access, continues to attend access regularly, continues to access her supports, maintains her residence in a clean and hygienic state and meets regularly with, and cooper- ates with, the Society worker. Ideally if the mother and children are to move to Alberta such a move should, if possible, occur before the start of the school year. However, there is too much uncertainty, and too much of a risk as at the date the motion was argued, for this court to place the children with their mother in her care. 52 The positive aspects of the mother’s situation are as follows: Children’s Aid Society of Algoma v. K. (A.) R. Kwolek J. 499

1) The mother’s mental health has stabilized. The Women in Crisis Centre workers have confirmed their view of her stability since mid-June. However, even at that stage one worker from Women in Crisis expressed that the stability was in part attributable to the supportive environment at that location and the mother’s lack of stressors. 2) The mother has attended regularly for meetings with the CAS worker and appears to have cooperated with the worker. 3) The mother has attended all access visits and the visits appear to have gone well. The mother has provided appropriate snacks at the visits. 4) There was no evidence that the mother was continuing to use illicit substances. This view was expressed by the Women in Crisis Centre where the mother resided for an extended period of time. 5) The children seem to enjoy the visits and appear to wish to return to the care of their mother or at the very least spend more time with her. Their behaviour has stabilized in care. 6) Although there appeared to be some historical evidence as to issues with respect to drug use by the mother, poor hygiene for the children and the mother’s ability to care for the children on a limited budget prior to the end of April 2015, the children appeared to be doing well academically in school even prior to apprehension. 7) The mother’s mental health issues have been described by health care professionals as related to stress. The medical information that has been provided to the court, although limited in nature, would support that the mother is able to function adequately in a supportive environment. 8) It would appear that the father now has accommodations and has stepped forward as a potential caregiver. Should Society investi- gations confirm that the children can be with him for significant periods of time, at the very least he can be a support for the mother in caring for the children. 9) The mother has since apprehension completed a number of parenting programmes. 53 At this time, I shall make a further without prejudice order, with increased access to the mother. I would expect this access to increase on a graduated basis with a view to a return of the children to her by Septem- ber 3, 2015 should her mental health continue to remain stable, and 500 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

should no incidents occur which would give rise to serious protection concerns. 54 There is very little information about the father and the role that he can play other than what I have described above. Currently I have the mother’s version of the father’s role in looking after the children, which version is coloured by the mother’s mental health issues. The father did attend in court when the motion was argued. It was his intention to file an answer and plan of care and he has now done so. The visits with the father have gone well and it does appear that he has, at the very least, support from the paternal great aunt who attended in court with the father during the argument for temporary care and custody. If the mother’s situation continues to deteriorate rather than improve, placement with him may be a potential option in the future.

Order 55 On an interim without prejudice basis: 56 I will order that the children remain in the temporary care of the Soci- ety, with the mother to have interim access, being a mix of supervised and unsupervised access, and including telephone access, in the discretion of the Society, at least three times per week for periods of at least five hours each. That access can be structured, if the society approves of the mother’s accommodations, to include lengthier overnight visits. 57 I would like to see the mother’s access visits gradually increased further. I do not know if the mother’s residence has been viewed by the Society. Her limited accommodation may be suitable for some overnight visits and even temporary accommodation if she intends on moving to Alberta or is in the process of finding more suitable accommodation in this area. I do not find her current accommodation, based on the limited information that has been provided to the court that it is a bachelor’s apartment, with a bed and a cot, suitable as a permanent residence for the mother and children. Hopefully, my order, and these Reasons, may facilitate the mother in obtaining better accommodations, if needed. 58 The conditions for access that will apply to the mother shall be the same terms as set out in the order of Justice Dunn dated May 4, 2015. 59 With respect to access to the father, I propose at this time to continue access by the father to the children on the same terms and conditions as set out in the order of Justice Dunn dated May 4, 2015, paragraph 3. If the father’s residence is satisfactory there appears to be no reason why Children’s Aid Society of Algoma v. K. (A.) R. Kwolek J. 501

the father’s access should not be expanded with or without the involvement of the paternal great aunt. 60 I propose to adjourn the application and motion at tab two until Sep- tember 3, 2015 at 9:30 a.m. It would be my intention at that time to return the children to the care of the mother unless new information comes to light in the intervening period that such a return would not be appropriate. 61 I order that any updating affidavits be filed by the Society no later than August 26, 2015 and by the parents and the OCL no later than Au- gust 28, 2015. The Society would have a limited right to respond in reply. Such affidavits should update the court as to the progress of the mother’s and father’s access, the mother’s mental health and plans for the care of these children. 62 If the parties are unable to consent to the order that I am proposing to make on September 3, 2015, then written submissions are to be prepared and provided to me no later than September 2 at 4:00 p.m. regarding temporary care and custody. Such submissions are to be limited as to an update of what has transpired since the last affidavits filed by the parties or based on new information that has come to light since our last court date. This is not an opportunity to rehash the arguments that were heard by me on August 4, 2015. 63 I would expect either the Society or the mother, if the mother is still planning on moving to Alberta in the near future, to have information before the court from the maternal grandmother as to whether she is prepared to have the children and the mother reside with her in Alberta. I would like to have information made available to the court as to whether the grandmother has completed the necessary prerequisites to be accepted as a temporary or emergency kin home. Technically, that information may not be necessary if the order that I make on September 3, 2015 would be, as I currently intend, to place the children with the mother. However, this court is very concerned that more information from the grandmother including at least a letter from her, and preferably an affidavit, has not been provided to the court. The plan to seek the support of the maternal grandmother has been articulated since the end of April 2015. I am also mindful of the court’s statutory obligation to consider placement of the children with kin, if placement with the parents is not possible. 502 REPORTS OF FAMILY LAW 67 R.F.L. (7th)

64 If there is a plan to move to Alberta, the court would like information as to how the family would travel to Alberta and what arrangements have been made or can be made for their transportation. 65 If the mother’s plan is not to move immediately to Alberta, I would like a structured plan set out by the mother as to how she intends to care for the children, where she intends to reside and the services she intends to use. I would expect her to continue to use outpatient counselling services available to her from WIC and to ensure that she is on a waiting list with CMHA as well as attending any medical appointments to maintain her mental health. 66 I would also like the father to provide information in affidavit or affidavits, as to his plan to care for the children and what services and supports he intends to put in place to assist him in caring for the children either for extended access or for full-time care. 67 The Society should use this intervening time to determine if they have any significant further evidence with respect to concerns they have with respect to the mother, the maternal grandmother or concerns with respect to the father’s ability to care for these children on at least an extended access basis. The Society should also confirm whatever is needed to properly supervise this family if the mother and children do move to Alberta. 68 In addition, hopefully, in the intervening time period, counsel for the children will also have an opportunity to review third party reports, meet with the children and have the OCL position before the courts. 69 Additional terms and conditions, in addition to the conditions in the current order, (certain of the existing clauses will have to be amended or changed - see clauses (d), (f), (g), (h), (i); (j) shall be deleted; (c) shall be deleted and replaced by clause 4 below) that I propose to make in an order placing these children with the mother, assuming no serious intervening concerns arise with respect to the care of these children by the mother by September 3, 2015, are as follows: (I would ask counsel to prepare written submissions about whether any of these conditions should be deleted or varied or whether any further conditions are appropriate). 1) The mother shall reside with the children at such residence as will be approved of by the Society. 2) The mother shall only provide the father with access in accordance with the court order or as directed by the Society; Children’s Aid Society of Algoma v. K. (A.) R. Kwolek J. 503

3) The children will attend school regularly; 4) The mother shall abstain from the consumption of alcohol or non- prescribed dosages of drugs during or within 24 hours of being in a caregiving role to the children. 5) The mother shall take medications and attend for such treatment as may be prescribed for her by her attending physician. 6) The mother shall ensure that the children’s hygiene is maintained at a proper standard. 7) The mother shall sign all reasonable consents as may be requested by the Society for third party service providers, for herself or for the children, including physicians, counsellors, dentists and others to enable the Society to properly monitor the safety and well-being of the children, and the mother’s mental health. 8) The mother shall ensure that the children attend all their scheduled and necessary medical, dental and counselling appointments. 9) The mother shall attend all reasonable programming and counselling for her mental and physical health and attend such parenting programmes as may be recommended to her by the Society. 10) The mother shall not have in her household any pets except with the prior approval of the Society. 70 If there are any questions, counsel may address those queries at our next return date on August 12, 2015. Application granted.