FDM v EGM, 2021 ABQB 420

Court of Queen’s Bench of Alberta Citation: FDM v EGM, 2021 ABQB 420 Date: 20210528 Docket: FL01 21135; 4801 172488 Registry: Calgary Between: FDM aka FDY Plaintiff - and - EGM Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice Janice R Ashcroft _______________________________________________________ Restriction on Publication Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2. No person shall publish the name or photograph of a child or of the child's parent or guardian in a manner that reveals that the child is receiving, or has received, intervention services. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Table of Contents I. Introduction . 2 II. Issues . 2 III. Evidentiary Challenges . 3 IV. Analysis . 5 A. Background . 5 i. Annulment of the Marriage and Allegations of Fraud and Deception . 6 ii. The Colgrove Property, the Colgrove Trust and the Attempted Eviction of Ms. Y .. 7 iii. Involvement of Government Agencies . 8

iv. Emergency Protection Orders and Allegations of Domestic Violence . 9 B. Date of Cohabitation . 10 C. The Parenting Regime That is In The Best Interests of the Children . 10 i. Past and Current Parenting Roles and Allegations . 11 ii. Practice Note 8 Assessments . 12 iii. Assessment of Each Parent’s Relationship with the Children and as a Co-Parent 13 iv. Parenting Time Allocation . 17 v. Decision Making Regarding the Children . 18 D. Child and Partner Support 21 i. Mr. M’s Guideline Income . 23 ii. Ms. Y’s Guideline Income . 32 iii. Child Support 35 iv. Partner Support 39 E.

Unjust Enrichment and Joint Family Venture . 46 i. Entitlement To A Remedy . 46 ii. Assets . 48 V. Conclusion . 54 I. Introduction [ 1 ] The Plaintiff mother, Ms. Y, resided in Cameroon, Africa. The father, Mr. M, travelled to Cameroon for business. When the parties met, Mr. M was the Chief Operating Officer of Blaze Energy Limited (“Blaze Energy”), a Canadian company. He was also President of Blaze Energy Cameroon (“Blaze Cameroon”), a company affiliated with Blaze Energy but which Mr. M essentially owned and operated in Cameroon. [ 2 ] The parties began an intimate relationship and Ms.

Y eventually moved to Canada with Mr. M. They have two children, WM, born in 2012 and RM, born in 2013. The parties separated in May, 2015. The children are now ages 9 and 8. [ 3 ] Ms. Y initially started actions under the Family Law Act , SA 2003, c F-4.5 (“ FLA ”) and the Divorce Act , RSC 1985, c 3 (2nd Supp ). An order of the case management justice dated May 4, 2017 closed action FL01-21470 and directed that the two remaining actions (FL01-21135 and 4801-172488) should not be consolidated but that both actions should be heard together at trial.

The order also stated that Action 4801-172488 shall pertain only to the Plaintiff’s claim regarding unjust enrichment. [ 4 ] This judgment addresses all issues in dispute between the parties including parenting, partner support and child support, both retroactively and ongoing, and property division. II. Issues [ 5 ] The issues in this matter and the parties’ position regarding each issue are as follows: 1. What is the parenting arrangement, including decision making, that is in the best interests of the children?

The parties initially agreed on equal parenting time but disagreed on decision making, with each party arguing that they are the better decision maker and co-parent. At a “new” evidence application after the trial, Mr. M varied his relief to ask for primary parenting 70% of the time. 2. What amounts of child support should have been paid over the years and what is the ongoing child support amount? Various interim orders for support were made; however, both parties argue that retroactive adjustments need to be made with Ms. Y arguing for an increase in the support payable to her and Mr.

M submitting that a decrease is appropriate. 3. Does Ms. Y have an entitlement to partner support and if so, what amounts should have been paid over the years and ongoing (if

any)? Previous interim orders directed partner support for a period of time, and then later reduced and terminated that support. Ms. Y argues that there is an entitlement to partner support, it was not paid in accordance with Mr. M’s income, and further that it was inappropriately reduced and terminated prematurely. Mr. M submits that he has overpaid partner support and that Ms. Y was capable of working much earlier after the parties’ separation. 4. Does Ms. Y have an interest, including monetary, in property accumulated during the parties’ cohabitation? Ms.

Y has claimed remedies based on unjust enrichment and constructive trust. Mr. M resists the application of these principles. [ 6 ] I will address each of these issues in turn but first I must acknowledge the evidentiary challenges of this trial, which were mainly due to the fact that each of the parties was self-represented. III. Evidentiary Challenges [ 7 ] Even though assistance was provided to the parties, both before and during the trial, regarding procedure, there were significant challenges ensuring proper tendering of relevant evidence. Both parties filed numerous volumes of documents.

I cautioned both parties, however, that unless a document was introduced through a witness and admitted as a relevant exhibit, I would likely not be considering the material. [ 8 ] Many emails exchanged between the parties over the course of their relationship were tendered as exhibits. Mr. M initially took the position that at least some of the emails tendered by Ms. Y were not authentic. However, at the end of the day Mr. M actually did not allege that any wording was altered by Ms. Y; rather, his issue appeared to be that her

interpretation of the emails was different from his, or that she had not tendered the complete string to show the context of the email. [ 9 ] For Mr. M’s part, he initially did not bring all of the actual emails he wanted to tender to the trial but rather sought to admit documents he titled as from his “Journal”. He submitted and later testified that he had recently copied all of the emails into this one large document, his “Journal”. Mr.

M eventually brought most of the emails which he indicated he had copied into his Journal, and they were admitted alongside these “Journal” entries. [ 10 ] In the end, each party had an opportunity to address the emails they had purportedly authored and those written to them by the other party through examination in chief, cross examination and rebuttal. Most of the emails written to each other were ultimately admitted as relevant evidence.

Similarly, photos, videos and audio recordings taken by each of the parties were also admitted as exhibits. [ 11 ] The rule in Browne v Dunn (1893), 6 R 67 (HL), was explained to the parties; however, both parties struggled with ensuring they had put key questions to the other party. Rather, the party would simply speak to the issue themselves in examination in chief or submissions and ask me to draw inferences on the other parties’ evidence without putting the direct question to the other in cross examination.

In an attempt to mitigate this problem, I allowed broader rebuttal evidence, especially when it appeared that certain key evidence, such as Mr. M’s income tax returns in long form, were not going to be specifically introduced at the trial. [ 12 ] Ms. Y had also brought relevant documents to the trial which had not been previously disclosed but which appeared to be relevant, and were put in front of Mr. M in cross examination for the first time. I allowed Mr.

M time to address these issues in rebuttal and after a ten-day adjournment, so that he would have sufficient time to respond to this evidence. [ 13 ] There was also a pre-trial direction to obtain an appraisal of the property in which the parties resided, and over which Ms. Y claimed an interest. Ms. Y did obtain a late appraisal which was provided to Mr. M approximately ten days before trial. Mr. M indicated at the beginning of the trial that the Alberta Treasury Branch would not give him an appraisal from 2011 and he did not intend to call any other appraiser. However, Mr.

M later indicated, in the middle of the second week of trial and when testifying, that he was having an appraisal performed on the property. [ 14 ] I allowed Mr. M an adjournment for time to have his appraisal conducted, and for the report to be reviewed by Ms. Y’s expert. Mr. M’s expert then provided evidence at the trial and Ms. Y’s expert gave rebuttal evidence. The timing of both appraisals, Ms. Y’s with short notice to Mr. M and Mr. M’s during the actual trial was challenging; however, the valuation of the property was relevant and important evidence.

In the end, I am satisfied that all parties had sufficient notice and opportunity to provide and respond to evidence as to the value of the property in question. [ 15 ] An issue arose late in the trial when it became apparent from Mr. M’s legal brief that Mr. M was challenging Ms. Y’s relief in her Statement of Claim, arguing that it was not specific enough to make a claim over certain property. Ms. Y had requested relief based on unjust enrichment, claiming equal division of all gain or profit made from Mr.

M’s share of investment in his companies (Blaze Energy and Blaze Cameroon), equal division of revenues generated from the “matrimonial property rentals”, and equal share of revenues generated “from the matrimonial cars rented to the Defendant’s company since acquisition .” [ 16 ] I provided two cases to the parties on amendment of pleadings: AARC Society v Canadian Broadcasting Corporation , 2019 ABCA 125 and Pace v Economical Mutual Insurance , 2021 ABCA 1 . When I asked directly if Ms.

Y was going to seek an amendment to her pleadings, she indicated she was intending to make an application to amend her pleadings, in particular to add specific property as set out in a

schedule of property (the “Schedule”). She emphasized that the relief claimed was no surprise to Mr. M as it was all discussed before the trial, both with the case management Justice and case management counsel. [ 17 ] Mr. M took issue with my direct question to Ms. Y as to whether or not she intended to amend her pleadings. He further responded that he was prejudiced and that the property that was at issue had been discussed only for the purposes of a binding judicial dispute resolution. He said he would have taken the appraisal more seriously if he had known that there was a clear claim on the

property. [18] After hearing from both parties, I allowed the amendment in a brief oral decision. The added

Schedule to the pleadings was, inessence, an outline of the specific property interests Ms. Y was claiming as set out in her legal brief. Mr. M was not surprised by theseproperty claims as he responded to, and also elicited testimony from both Ms. Y and another witness, Mr. Mele, with respect to theseclaims. In particular, I held that Mr. M knew, as per the various pre-trial conference orders regarding appraisals, that Ms. Y was claimingan interest in the property in which he and Ms. Y resided in Calgary. Further, I noted that the reason Mr.

M gave to the Court at thebeginning of the trial as to why he initially did not organize an appraisal was that the Alberta Treasury Branch had told him they couldn’tdo such an appraisal.

He did not mention any issue regarding a failure to specify relief with respect to that property or any surpriseregarding the appraisal. [19] Near the end of the trial it still appeared that the parties had not introduced all the evidence that may be relevant to their case.Mindful of the foundational Rules[1] and that the parties were self represented, I allowed both parties another opportunity to provideadditional information at the end of the trial and the opportunity to be recalled to the stand to give evidence and to be cross examined.Ms. Y indicated, however, that Mr.

M had had adequate opportunity to provide evidence, not just in the trial but over the years and shewas exhausted by the effort required to represent herself and force disclosure. Mr. M indicated he may lose his job if he continued totake time off for further trial days. Mr. M further submitted that he believed that RRSP evidence was the only relevant evidence left toproduce. [20] Ultimately, the parties indicated that they would not be calling further evidence.

The parties agreed, however, and I sodirected that the title to the main property in question in which they had resided together, and the RRSP statements as held in Mr. M’sname would be marked as exhibits and each party be allowed to provide submissions regarding this evidence in written form. IV. Analysis A. Background [21] The background to this litigation is relevant to the property claims, parenting, and most significantly, to my assessment ofwhether each parties’ testimony, on different points, is credible. [22] Credibility imports two concepts: reliability and trustworthiness.

The reliability of a witness relates to whether their evidenceis inadvertently influenced by other factors such as memory lapses over the passage of time, and the particular experience and knowledgeof that witness. Trustworthiness speaks to whether the witness is attempting to deceive or purposively be untruthful. Credibility may beassessed in a variety of ways but demeanour should not be overemphasized: Faryna v Chorny (1951), (BC CA),[1952] 2 DLR 354 (BCCA). [23] Findings of fact in the face of conflicting evidence are based on the civil standard of balance of probabilities: FH vMcDougall, 2008 SCC 53. [24] Mr.

M was an older man with secure Canadian citizenship and finances and resources at his disposal, and with knowledge ofCanadian laws and business. Ms. Y was a very young woman from Cameroon, who had moved to another country and in quicksuccession gave birth to two children. While Ms. Y presents now as an articulate, intelligent woman, there is no doubt that there was asignificant power imbalance in this relationship, and that this power imbalance continued after the separation of the parties. i.

Annulment of the Marriage and Allegations of Fraud and Deception [25] The parties participated in a marriage ceremony in Cameroon in September 2011. Shortly after the separation, Mr. M attendedin Cameroon and obtained an order from a Cameroonian court that annulled his marriage to Ms. Y, and purported to grant custody to himof the children. Prior to her marriage to Mr. M, Ms. Y had been married for a very short period of time to another individual. Themarriage between Mr. M and Ms. Y was annulled on the grounds that Ms.

Y was still married, as the appeal period for the DivorceJudgement had not expired, at the time of the parties’ marriage ceremony. The annulment was upheld by the Court of Appeal: M v M,2018 ABCA 195 [M ABCA]. [26] Mr. M testified that he believed Ms. Y to have fraudulently deceived him into marriage, that he did not know she was stillmarried at the time of the ceremony in Cameroon and that Ms. Y only married him for his money and to gain entry into Canada. [27] Ms. Y testified to drafting and sending an email to Mr.

M on June 11, 2011: • “Now u send me an sms asking me to think about what I want, but I should be teh [sic] one asking you that question. After theannouncement made to me today by the lawyer, I was scandalised, shocked and left dept. I had no other word for her than she was a fool.Yes I told her that. I asked her what made her to tell me the divorce could be less than 3 month. I asked her where she saw that writtenand why did she pushed me in this trouble.” [28] Mr. M also tendered an email on June 21, 2011 from Ms. Y to Mr. M: • bb im divorced but now im waiting for the certificate to come out.

I will phone the lawyer to see if I can push things to movefaster. But I’m sure yes so I will first need her to tell me if necessaty [sic] [29] During the trial, however, Mr. M acknowledged writing the following in various emails to Ms. Y: • On June 22, 2011 – “I am beside myself...But I am so disappointed, so upset. ...Since we will not be legally married. I can not

apply to sponsor you to Canada. You will not be here for Christmas....I have spent over $33,000 CDN, ...to buy tickets for my family and friends...” • On September 9, 2011 – “…I paid $2 000 000 for the application for the consultant. The consultant cannot submit an application without the divorce certificate. All the work in the application says we were married on the 17 day of September. If the divorce certificate is not dated before the marriage. Then the application is garbage. The Canadian Embassy will not accept our marriage on September 17, ...I cannot accept this. Please talk to the lawyer.

We need to pay what we have to, to get a certificate dated before the 17 th. ” • On September 9, 2011 – “We have 4 days next week to make it happen. You need to ensure we do not waste a minute of time. ...Yes she has said it is impossible. But nothing is impossible. She just needs to think of another way. If we have to pay even 3 000 000...” [ 30 ] When presented with these emails Mr. M testified that his comments above to Ms.

Y only related to obtaining a certificate which he believed was needed, and that he was just asking her not to be “lazy” about taking this action. [ 31 ] The emails demonstrate, however, that prior to the religious ceremony Mr. M knew that there was a significant problem with Ms. Y’s divorce proceedings. Mr. M says he was only looking for a certificate to confirm that Ms. Y’s divorce was final; however, there was no evidence that any such document was eventually received by Mr. M prior to the religious ceremony with Ms. Y. Receipt of such a document would then presumably have alleviated Mr.

M’s concern about the certificate, and allowed him to proceed with the marriage. Yet no certificate was tendered in the proceedings. [ 32 ] Mr. M indicated that he returned to Cameroon after the parties’ separation because he learned that Ms. Y had still been married. There was no explanation as to how or exactly when he learned this fact. [ 33 ] I find that Mr. M either knew all along, or was willfully blind to the fact that the parties may not have been legally married, but it only became advantageous to him to obtain the annulment after the parties separated. [ 34 ] I also reject Mr. M’s narrative that Ms.

Y only “married” him for his money or to obtain sponsorship to Canada. There may have been many and varied motivations, on the part of both parties, for the beginning and continuation of their relationship. However, the emails between them at the beginning of their relationship, as well as the length of time they cohabited in Canada, do not support a fleeting relationship where money, or reasons other than love and affection, were the primary motivation for the relationship. ii. The Colgrove Property, the Colgrove Trust and the Attempted Eviction of Ms. Y [ 35 ] Mr.

Biagio Mele, a former friend and business partner of Mr. M, testified that in 2011 Mr. M directed him to sign a document. Mr. Mele did not have any recollection of the specifics of the document but identified his signature at the end of a document titled Deed of Settlement (the “Deed”). [ 36 ] The Deed is dated September 8, 2011, shortly before the religious marriage ceremony between the parties in Cameroon and purports to create a trust (the “Trust”) wherein Mr. M is the beneficiary or “Settlor” and Mr. Mele is the “Trustee”. While there was a

schedule of property attached to the Deed, which was to be transferred into the Trust, namely a coin, Mr. Mele testified that he had no memory of this property ever being transferred. [ 37 ] A second document dated May 22, 2012 and titled “Declaration of Trust” purported to transfer 1323 Colgrove Ave NE, [2] (the “Colgrove Property”), the property owned by Mr. M and in which he resided, to the Trust. The Colgrove Property consists of side- by-side adjoined properties under one title.

The parties moved to this property in approximately May, 2012 and resided in one side of the Colgrove Property throughout their cohabitation in Canada. [ 38 ] Shortly after the parties’ separation, when it appeared Ms. Y was not going to move out of the house on her own accord, Mr. Mele’s lawyer served on Ms. Y a Notice to Terminate tenancy of the Colgrove Property. The Notice essentially purported to evict Ms. Y from the house. Mr. Mele acknowledged a letter written by his lawyer to Ms. Y dated June 30, 2015. The letter attached the Notice to Terminate. [ 39 ] Mr. M denied that he had directed Mr.

Mele to evict Ms. Y saying that he and Mr. Mele had discussed the issue and that Mr. Mele thought it was an appropriate action given that the mortgage had to be paid. Mr. Mele, while acknowledging that the letter was served, said he did not remember the event specifically. Mr. Mele testified that at the time of these events, his company, Blaze Energy was on the verge of receivership and he was not paying attention to other issues. [ 40 ] I reject Mr. M’s evidence that he did not direct Mr. Mele to evict Ms. Y. Mr. Mele testified that he did not receive anything in return for managing the Colgrove Trust.

Pursuant to the Deed, Mr. M was the sole beneficiary of the trust. While there may have been discussions between Mr. M and Mr. Mele about evicting Ms. Y, Mr. M was the driving force behind the attempted eviction and instructed Mr. Mele, as his friend and business colleague, to use the Deed and the Trust to attempt to evict Ms. Y. iii. Involvement of Government Agencies [ 41 ] Ms. Y also alleged that Mr. M reported her to immigration authorities and the Canada Revenue Agency (CRA), and threatened to report and indeed reported her mother to the tax authorities in Cameroon. [ 42 ] Mr. M denied reporting Ms.

Y to immigration. Ms. Y testified that immigration investigated her because Mr. M reported that she had undergone the marriage on fraudulent grounds and that the marriage was annulled. She tendered a document dated May 2018 which states “ You were granted permanent resident status in Canada based on an application and undertaking submitted by your sponsor, [EGM]. We have reason to believe that you may have misrepresented your relationship with your sponsor in order to gain

permanent resident status in Canada .” [ 43 ] I find it is likely that Mr. M did report Ms. Y to immigration. This is consistent with the wording of the letter, Mr. M’s position that he was tricked into marriage, the timing of the immigration investigation and his aggressive actions in flying back to Cameroon, getting the marriage annulled and obtaining an order for custody of the children in the Cameroonian courts. [ 44 ] With respect to the CRA, Mr. M testified that they also investigated him. He believes that CRA’s interest was peaked because both he and Ms. Y had claimed the child tax benefit.

The documentary evidence, as set out in Ms. Y’s tax returns, indicates that she did claim that the children resided mainly with her when the parents were actually engaged in a shared parenting arrangement. I find that Mr. M likely did not report her to CRA. Rather, the involvement of CRA came about because there was inconsistent information on the parties’ income tax returns regarding the parenting arrangements. [ 45 ] With respect to Ms. Y’s allegation that Mr. M reported her parents to the tax authorities in Cameroon, Mr.

M acknowledged the email thread dated January 4, 2016, but that his motivations were to ensure Ms. Y and her mother were abiding by the law in Cameroon. The wording in the email [3] and the timing of these reports, when the parties were in high conflict, support that Mr. M did report Ms. Y’s parents to the tax authorities in Cameroon. There was no reason why Mr. M, at this point, should concern himself with the conduct of Ms. Y’s parents in Cameroon yet he wrote them an email about tax consequences. Even if Mr. M did not report Ms. Y’s parents, the email, at the very least, was intended to intimidate Ms.

Y through exerting some pressure regarding taxation authorities on her parents. [ 46 ] Mr. M also twice reported Ms. Y to Child and Family Services after separation during the course of this litigation. There was evidence before me that the children had made comments that Ms. Y had struck one of them and this had been reported to Mr. M, who in turn reported it to Children’s Services. Given the children’s comments at the time, it was reasonable to report the issue to Child and Family Services. Both parties agree that after initial interviews, there was no further action taken by Children’s Services.

A more recent report to Children’s Services was not made by Mr. M, although he also made his own report after receiving information from the school. iv. Emergency Protection Orders and Allegations of Domestic Violence [ 47 ] While the presence of domestic violence has limited relevance in determining property issues, it is an important factor in determining parenting arrangements for the children. [ 48 ] Around the time of separation in May, 2011, Ms. Y applied for an Emergency Protection Order (an EPO). The EPO was not confirmed; rather, the parties agreed to a Mutual No Contact Order (the “MNCO”). Ms.

Y also applied for a second EPO against Mr. M, shortly after a court appearance that addressed parenting coordination and possession of a 2012 Toyota vehicle. The second EPO also was not confirmed. [ 49 ] Mr. M took the position that the EPOs had no basis in fact and that Ms. Y was making false complaints about domestic violence and claiming protection through the EPO system, to advantage herself in the overall litigation. [ 50 ] Ms. Y responded that Mr.

M was jealous and controlling, pointing to his control over the finances, alleged threats he made regarding her immigration status, and his access to her private emails prior to their religious marriage. Ms. Y also cross-examined Mr. M regarding a particular request she made in the spring of 2015 to visit her family in Africa because she was suffering from depressive symptoms. Mr. M responded that he denied that request because he feared she may stay there with the children and Cameroon was not a signatory to the Hague convention. Mr.

M denied controlling her financially and testified that he gave her $1,000 discretionary funds per month during their relationship, which was not for household expenses. He also alleged that Ms. Y accessed his private emails without permission. [ 51 ] While Mr. M says the second EPO was sought because Ms. Y had lost in court, the actual order resulting from that court appearance indicates that Ms. Y was successful in one of the two issues before the Court on that day. She obtained exclusive possession of the Toyota vehicle. She was unsuccessful in resisting the intervention of a parenting coordinator.

On the limited information before me, I decline to make a finding that Ms. Y accessed the EPO process improperly. [ 52 ] Domestic violence includes threats and stalking behaviour. Domestic violence may also be demonstrated through one party exercising coercive behaviour over the other in various ways, including controlling finances, decision making, and choices. I accept that Mr. M exercised control in the relationship due to his superior financial position and the power imbalance between the parties.

There was also evidence that both parties exhibited jealousy towards their partner regarding individuals outside their relationship. [ 53 ] On the evidence before me, however, and when considering the overall context of the parties’ relationship, I do not find that Mr. M’s actions rose to the level of domestic violence. B. Date of Cohabitation [ 54 ] Ms. Y testified that the parties met briefly in March, 2010 and then in June or July of that year Mr. M’s driver was sent to Ms. Y’s business, a beauty salon, to ask her out. Mr.

M then returned to Canada and they did not connect until later in the year in November, 2010 when he returned to Cameroon. Around that point in time they began to look for an apartment to live in together and in March, 2011 they were engaged and had secured an apartment. [ 55 ] Ms. Y stated the apartment lease in Cameroon was in both their names and they were cohabitating as intimate partners, even though Mr. M was flying back and forth between Cameroon and Canada.

She testified they made wedding plans together, she became pregnant with their first child, they underwent a religious wedding ceremony in September, 2011 that was attended by family and friends, and they eventually moved to Canada. Upon arriving in Canada, they moved into the Colgrove Property. [ 56 ] Mr. M submitted that they did not cohabit until they returned to Canada in the spring of 2012. He testified that only Ms. Y

lived in the apartment in which she claims they lived as a couple. Mr. M testified that he only paid for internet (Creolink Communications) to allow them to talk at convenient times, given the time difference between Cameroon and Canada. Mr. M questions why Ms. Y did not tender a lease agreement in both their names if the parties indeed cohabited in the apartment in March, 2011. [ 57 ] The emails written by Mr. M indicate that they were paying for satellite and communications services on the apartment as of March, 2011. Even if it was only Ms.

Y’s name on the lease, the apartment was secured for the benefit of both parties as a couple. The apartment created a residence for when Mr. M returned to Cameroon; in essence a home in which they could live and continue their intimate relationship. I also note the email dated [Mer [4] 12/01/2011] wherein Mr. M states: “What should we do about the apartment? Wait until March to book it?” [ 58 ] I find that the parties began cohabitating in an intimate partner relationship in March, 2011 when they rented the apartment, became engaged and, at times, resided in the apartment together. C.

The Parenting Regime That is In The Best Interests of the Children [ 59 ] There are two children of the relationship, both boys, WM aged 9 and RM aged 8. The parenting time and structure has varied since the separation, with Ms. Y initially having the children the majority of the time. Later, in 2016 the parties embarked on a shared parenting arrangement with the children spending equal time in the care of each parent. Both parties initially took the position that the one week on, one week off shared parenting arrangement should continue. After the new evidence application by Mr.

M, based on the involvement of Children’s Services, he sought to have the children’s primary residence be with him, approximately 70% of the time. The parties agree on the sharing of holidays. [ 60 ] Both parties have sought sole decision making with respect to major decisions regarding the children, including decisions related to their health and education, and activities. [ 61 ] The parties were aware throughout the trial that this Court was not bound by their positions and would make decisions regarding parenting time and decision making based on the children’s best interests. i.

Past and Current Parenting Roles and Allegations [ 62 ] Ms. Y alleges that Mr. M’s deception in failing to disclose his finances, his narrative that she only married him for his money, and his conduct in reporting her to various agencies has taken an enormous toll on her. She emphasized that she has expended a significant amount of her energy forcing Mr. M to disclose his income and defending herself against his allegations, all while ensuring the children’s interests are protected. [ 63 ] She testified that at least in the early years after the separation, Mr.

M’s parenting was arranged around his work schedule, which included approximately ten days each month travel to Africa. Ms. Y stated that she accommodated Mr. M when he needed this flexibility but the same accommodation was not shown in return. Ms. Y testified that Mr. M did not allow her to attend at the children’s school to share in their school Christmas activities, and that he did not allow the children to spend time with her mother who was visiting from Cameroon. [ 64 ] Ms. Y also stated that Mr.

M continued to insist on pick up and drop off at the Superstore parking lot when the children transitioned between the parents, even though Ms. Y felt that sort of transition left a negative impression on the children. [ 65 ] She also testified as to the conflict between the parties with respect to decision making alleging that Mr. M has, in the past, made decisions with respect to the children’s schooling and extracurricular activities based on finances alone, for example, withholding one of the children from the benefit of pre-school when he would not pay

section 7 expenses. [ 66 ] Ms. Y also alleges that Mr. M has not properly communicated with her in the past, for example, when he suggested psychiatric testing, after RM appeared to have killed a small dog but not telling her the reason why he believed that RM needed testing. [ 67 ] Ms. Y also states that Mr. M speaks negatively about her to the children, which is upsetting and not supportive of their co- parenting arrangement. [ 68 ] Ms. Y tendered an audio recording of the children, wherein one of the children indicates that Mr. M hit him. Ms.

Y also tendered pictures which she testified she took of the children. In the pictures there is some slight bruising, some minor rashes and some blistering of one of the children’s feet. There is also a picture of one of the children in a dirty T-shirt. Ms. Y submits that these pictures show that Mr. M did not properly care for the children’s hygiene. [ 69 ] Mr. M testified that he has been involved with the children since their birth, getting up at night with them and being involved in their day-to-day care. He maintains that he is the more stable parent, capable of providing the best decision making.

For example, he testified that Ms. Y would not agree to assessments as recommended by the school or psychological testing after the incident with the dog. He emphasized Ms. Y’s actions in bringing an EPO the same day she “lost” in court, implying that she cannot be trusted to make decisions in the best interests of the children or in the co-parenting relationship. [ 70 ] Mr.

M denies ever hitting the children as he has a strict position of no physical discipline. [ 71 ] He also provided evidence of the YMCA entry card that the children were swimming every day and explained that is the cause of the children’s dry skin and foot blisters. [ 72 ] Mr. M also tendered recordings of the children in which one of the boys says he was slapped by his mother after pushing his brother, and another recording where one of the boys says he was hit with a hammer by his mother.

[ 73 ] Mr. M submitted that Ms. Y does not tell the truth as shown in questioning. Ms. Y said under oath that Mr. M, when returning a stroller to her front door, forced the stroller on her, yet a video he tendered in court shows that she threw the stroller down the front stairs and was the aggressor. [ 74 ] Mr. M also points to Ms. Y’s evidence in questioning that she has stated she will not always obey court orders, and provided other evidence that she recorded the children’s family doctor during an assessment of the children, accessed Mr.

M’s email without his permission, and took his keys and entered and stole documents from his office at Blaze Energy. [ 75 ] Mr. M responded to Ms. Y’s allegations about his conduct in not allowing her to attend the children’s Christmas parties by explaining that he believed they were both under a Mutual No Contact Order (MNCO). If she had attended at the school they would have been in breach of the MNCO.

Similarly, the transitions at the Superstore were necessary given the MNCO, and it was agreed between the parties that Superstore was a good transition point as they could both accomplish their shopping while waiting for the transition. [ 76 ] Mr. M also responded that he did in fact offer Ms. Y’s mother time with the children when she visited from Cameroon and that the condition he set prior to granting some time to Ms. Y’s mother, that Ms. Y provide flight details with respect to her mother’s flights, was not onerous. ii.

Practice Note 8 Assessments [ 77 ] Since separation, the parties’ have participated in two Practice Note 8 assessments, one in 2016 and another in 2020, both conducted by Ms. Eileen Ailon. The Court had the benefit of Ms. Ailon’s updated report and testimony, in which Ms. Ailon recommended a continued shared parenting regime, with the children to spend equal time with each parent and decision making also to be shared. She also recommended that the parties attend twice a year at a parenting coordinator. [ 78 ] Psychological testing of both parties did not reveal any significant psychopathology. Ms.

Ailon also provided detailed information regarding her observations of the children with both parents and in their respective homes. Her observations show that each parent was appropriately and positively engaged with the children. Ms. Ailon testified that both parents are capable of being supportive and stable parents for the children, with each party having a different parenting style. [ 79 ] Ms. Ailon also testified as to the children’s reported comments that they were being hit by the other parent.

She indicated that their evidence was inconsistent as to timeline and must be viewed within the context of the entire custody dispute, and that children often try to please their parents by saying different things. In particular, she noted that while the mother had admitted to hitting one of the children with a wooden spoon this appears to have occurred a long time ago. Ms. Ailon did not appear to have any concerns about physical abuse by either of the parents. [ 80 ] Ms.

Ailon also testified that the children are both being detrimentally affected by the conflict and reported some very poignant and sad comments made by the children. Ms. Ailon indicated in her report that the parents’ chronic conflict is weighing on the children’s developing personalities and impairing their overall well being. [ 81 ] Ms. Ailon emphasized that the children are both closely attached to each parent and opined that psychologically, notwithstanding the conflict, it would be in their best interest to continue their 50/50 parenting schedule.

She noted that the children are close to each parent and miss the other parent when they are away from them. She stated in her report that at the children’s young ages, frequent contact was critically important to continue the healthy attachment to their parents and developing their own sense of stability and security. iii. Assessment of Each Parent’s Relationship with the Children and as a Co-Parent [ 82 ] There is no doubt that Mr. M’s initial treatment of Ms. Y, as outlined earlier in this decision, has deeply affected Ms. Y.

While soft spoken and calm, she became emotional when advising the Court of the injustices she experienced and continues to experience, which she related to her ongoing battles with Mr. M. Ms. Y, however, has focused much of her energy in obtaining vindication against Mr. M and lacks self awareness as to how this focus is negatively affecting her life and that of the children. [ 83 ] Mr. M’s demeanour was, for the most part, measured and affable, becoming emotional only when speaking about the children, the impact that this conflict is having on them and his particular concern for WM.

However, he demonstrated a significant lack of understanding about how his own actions in the conflict, such as certain deceptions with respect to his finances, and his continuous hurtful narrative that Ms.

Y had married him for his money, has escalated the conflict. [ 84 ] Pursuant to section 18(2) of the FLA , the relevant factors which I must consider in assessing the parenting arrangement for the children include: • ensuring the greatest possible protection of the child’s physical, psychological and emotional safety; • considering all of the child’s needs and circumstances, including o the child’s physical, psychological and emotional needs, including the child’s need for stability, taking into consideration the child’s age and stage of development, o the history of care for the child, o the child’s cultural, linguistic, religious and spiritual upbringing and heritage, o any plans proposed for the child’s care and upbringing, o the nature, strength and stability of the relationship, including between the child and each person residing in the child’s household and

any other significant person in the child’s life, o the ability and willingness of the parties ▪ to care for and meet the needs of the child, and ▪ to communicate and co-operate on issues affecting the child, o taking into consideration the views of the child’s current guardians, the benefit to the child of developing and maintaining meaningful relationships with each guardian or proposed guardian, and o the ability and willingness of each guardian or proposed guardian to exercise the powers, responsibilities and entitlements of guardianship. [ 85 ] Until the separation of the parties, Ms.

Y was responsible for the primary care of the children. While I accept that Mr. M parented the children during the parties’ cohabitation, he also held a full-time job outside of the home and was working a significant part of the year in Cameroon. Further, even though Mr. M continued to insist he was involved with the children “100 percent” of the time, the actual wording of his evidence supports that the parties had quite traditional roles in the family. For example, Mr. M said he took the children to work to “give her [meaning Ms. Y] a break” and brought Ms. Y’s mother over to help Ms. Y with the children.

This testimony presumes a general status quo that Ms. Y’s main role was to look after the children. [ 86 ] Ms. Y has been a consistent source of love and support for the children. The children’s diet, hygiene and appearance are of utmost priority and she bonds with them through her day-to-day caregiving. Although no evidence was given on this subject, I also infer, given Ms.

Y’s Cameroonian heritage, that she is well positioned to assist the children in connecting to their history and confronting any discrimination they may face. [ 87 ] The parties entered into, by consent, a shared parenting arrangement in 2016 which has allowed Mr. M to also become a primary caregiver for the boys. Mr. M also provides a stable and consistent source of love and support for the children.

He engages with them in physical activities, coaches their hockey and provides them with calming activities such as meditation. [ 88 ] Both parents gave evidence attesting to the children’s unique and different personalities, strengths and challenges. Both parents value education and are involved with the school and assist the children in ensuring their homework is completed. [ 89 ] After the trial, Mr. M alerted the Court to recent child welfare involvement and I allowed the parties to tender this “new” evidence, pertaining only to the recent events in question.

An investigator from Children’s Services (the “investigator”) also attended the new evidence application and gave evidence as to her involvement. She testified that the children came to her attention after being flagged by an intake worker at Children’s Services as an urgent assessment.

The concerns that were reported centered around physical discipline at the mother’s, and one of the boys, WM, engaging in suicidal ideation. [ 90 ] The investigator advised, after interviewing the children, that the boys reported physical discipline in mom’s house in the form of a belt, wooden spoon and open hand on a bare bum, but were inconsistent as to the time lines when these occurred. With respect to WM’s alleged comments about not wanting to be around anymore, the investigator stated that WM told her he was not willing to share too much as he said he had already spoken of this to other individuals.

However, he did share with her that he often had those thoughts and had had them for awhile. [ 91 ] When assessed in terms of feeling unsafe, the investigator relayed that WM reported that he felt unsafe at his mother’s house; however, when asked why, these feelings appeared to be linked to his mother not buying him things. Both boys indicated that they felt equally unsafe at Dad’s house due to him yelling.

RM reported in his interview that he doesn’t know which parent is lying when they both say they pay for his sports, and that dad has shown him receipts regarding same. [ 92 ] The investigator testified that she was continuing her assessment but recommended that WM be taken to his pediatrician, that he attend counselling, and that the parties engage with an in home support worker. [5] [ 93 ] Ms. Y admitted to smacking WM on the bare bottom saying that it happened only once and that was the day before the report to Children’s Services. [ 94 ] Ms.

Y makes the point that just before every important court hearing or decision, Mr. M makes a report to Children’s Services. In the case of this latest report, however, I accept that it was a third party who first reported the concerns regarding WM to Children’s Services. [ 95 ] Similar allegations regarding physical discipline were made early in the litigation. The earlier reports were investigated and then Children’s Services closed the files. Ms. Ailon spoke to these allegations, but she did not find them overly concerning.

She, like the recent investigator from Children’s Services, noted inconsistencies with respect to the timeline of the physical discipline and testified that children who are involved in parenting disputes will often say what the other parent wants to hear, even if it is not true. [ 96 ] Nonetheless, I do not find Ms. Y fully credible with respect to the physical discipline of the children. For example, Ms. Y indicated that it was an accident that she had hit one of the children with a wooden spoon in the past. It is not believable that Ms.

Y accidentally turned when cooking and happened to hit one of the children with a wooden spoon as she told the investigator. [ 97 ] Ms. Y’s use of physical discipline on the boys has come up a number of different times in this litigation, both in the assessment by Ms. Ailon and more recently, by the investigator. Both parties were aware that they were each alleging that the other parent had hit the children during the trial, yet shortly after the conclusion of the trial, Ms. Y hit one of the children on his bare bottom. While I do not believe Ms.

Y engages in physically disciplining the boys that often, she likely does so more than she admits.

[ 98 ] Mr. M emphatically testified as to why he does not believe in corporal punishment, and I note the boys' complaints at their Dad's house relate mainly to Mr. M yelling and time outs. I accept that Mr. M does not physically discipline the children. I do accept that Mr. M occasionally yells at the children, which was reported to both Dr. Ailon and the investigator from Children's Services. [ 99 ] In terms of respecting the other parent’s role in their co parenting arrangement, Mr. M treats Ms. Y in a dismissive manner, minimizing her parenting role.

He took the children to the dentist and the eye doctor without seeking Ms. Y’s input or permission, although he was candid that he had taken them. He also enrolled the children in hockey without her permission. I also find that it was unreasonable of Mr. M to place the condition of viewing the grandmother’s ticket before allowing the children to visit with her. Mr. M had just returned with the children from a two week trip to Italy, yet he was reluctant to allow them a short time with their grandmother, who was visiting from Cameroon, on his parenting time. [ 100 ] Mr. M also takes Ms.

Y to task for not allowing medical and health interventions when at times he has failed to provide her with full information about why that intervention is needed. [ 101 ] For her part, Ms. Y also responds in a negative manner to Mr. M’s communications. She also takes the children to appointments without informing Mr. M. In particular, she recently took the children to the dentist without advising Mr. M. She was also not truthful in her assertion at Court that the dentist did not examine the children. [ 102 ] Ms.

Y, at times, becomes intractable with respect to decisions regarding the children if something is suggested by Mr. M. For example, even after becoming aware that RM may have killed a small dog by throwing it over the balcony, Ms. Y would not consent to professional help for RM. I don't accept Ms. Y's continued justification in this instance, that Mr. M was seeking psychiatric as opposed to psychological help, and that she would have consented to psychological help but that it was only psychiatric assistance that was being requested. While I understand Ms.

Y’s concerns about “medicalizing” RM at such a young age, the alleged killing or injuring of a small dog by a young child is a very serious issue and should have been recognized as such. Ms. Y did not seem to understand the significance of the incident. The evidence supports the conclusion that Ms. Y continued to reject testing for RM until it was ordered by the Court. [ 103 ] Ms. Y also minimizes reports about WM’s alleged comments regarding self harm, moving the focus away from WM and towards protecting herself.

She states that she will allow WM to go to a counsellor, but then immediately places conditions on that counselling, namely that all information has to be shared when both parties are present. She also stated in her affidavit that the children do not need a psychologist or unnecessary therapy; rather, they need proper parenting and to be shielded from the parenting conflict. While the children are suffering from the conflict, Ms.

Y does not appear to recognize, given the litigation and conflict to date, that coping skills developed through counselling may be a valuable tool. [ 104 ] There was evidence from the children that both parties speak negatively about the other. Dr. Ailon indicated in her report that WM stated that both parents made negative comments about the other, and RM stated that they each say the other one is lying. [ 105 ] I find that Mr. M does speak negatively to the boys about Ms. Y, in particular, her alleged minimal efforts at looking for a job, and his dislike of paying support. Ms.

Y is less likely to speak negatively about Mr. M in front of the children. However, the recording of the children indicates that both parties, at times, create environments which encourage negative reporting of the other parent. [ 106 ] The audio and video recordings, when placed in context, did not constitute any significant evidence. RM escaping out of the house for a brief period of time when in Ms. Y’s care, was, I find, a one-off event. [ 107 ] The type of recording that has been continuously undertaken in this parenting dispute has been damaging to the children’s emotional well-being.

Both parties appear now to recognize this fact and have consented to an order wherein I direct that no further recording of the children, for any litigation or evidentiary purposes, will be done by the parents. [ 108 ] In terms of the evidence of one of the children having blisters around his feet, I accept Mr. M’s evidence that this appears to be athlete’s foot which may have come about because of wet footwear and socks after going swimming.

The children’s skin issues are not serious, and I do not find either party to have neglected the children’s hygiene. [ 109 ] I do not have any concerns about the other individuals to whom the children are exposed in their parents’ homes. Ms. Y’s brother lives with Ms. Y and the children. Mr. M tendered some evidence of a call made by one of the children concerning their uncle making comments regarding a woman. Mr. M indicated that he was tendering the evidence only to show how Ms. Y refused to communicate about this issue.

The evidence was hearsay and it was difficult to discern in what context the comments were made or if there was any truth to the comments. Ms. Y’s brother has lived with her and the children now for quite some time and Mr. M did not appear to have any significant concerns about him. Ms. Ailon also relayed an observed positive interaction between the boys and their uncle and did not identify any issues with respect to him being around the children. [ 110 ] There were no concerns regarding Mr. M’s new partner, Ms.

BSM, and her presence around the children. [ 111 ] Unrelated to parenting but relevant to credibility, I find that Ms. Y was untruthful in saying that Mr. M pushed or forced the stroller on her. However, while I do not condone Ms. Y being untruthful about who pushed the stroller, it is curious that someone just happened to be recording Mr. M when he delivered the stroller back to her home, bringing it purposefully up the steps right to the door. Both parties testified that the strollers were a point of contention in terms of whether both strollers were supposed to be in the control of Ms. Y. I find that Mr.

M likely intended to provoke Ms. Y by bringing it up the steps, and a third party, in Mr. M’s litigation camp, filmed it in hopes that there would be some kind of altercation. iv. Parenting Time Allocation [ 112 ] As set out in Richter v Richter , 2005 ABCA 165 para 11 , “...as a general proposition... shared parenting arrangements ought not be ordered where the parents are in substantial conflict with each other...” In ordering a parenting arrangement where one party has sole decision making and primary parenting, although one parent’s relationship with the children will undoubtedly suffer, the lessening of

conflict is seen to offset that harm. I have seriously considered whether it would be better to order primary care to one of the parties, given the continued conflict and the evidence that the boys, in particular WM, are being harmed by the conflict. [ 113 ] In Grindley v Grindley, 2012 ONSC 4538 at paras 210-218 the Court helpfully reviewed different parenting arrangements including sole custody with access, joint or shared parenting, and parallel parenting.

The Court stated that joint custody (more commonly referred to now as shared parenting in some form) is appropriate in circumstances where the parents have demonstrated that they are able to put the children’s interests above their own. Parallel parenting can also be an effective parenting regime, even in cases of high conflict. Parallel parenting may be especially useful when sole custody has the potential for one parent to minimize or eliminate the other parent from the children’s lives.

See also Caufield v Wong, 2007 ABQB 732 for another example where parallel parenting was ordered despite continued conflict. [ 114 ] I find, despite the damaging and often unfounded allegations each party levels against the other, and the recent child welfare investigation, that both parties are capable and loving parents. They have had shared parenting by consent since 2016. They share similar goals in terms of the children’s upbringing and education.

They have also, through their initial positions taken at the trial to share parenting time, demonstrated that they do recognize the value of having the other parent in the children’s lives. The parenting assessor, Dr. Ailon, also recommended that the parties continue to share parenting with joint decision making. [ 115 ] Significantly, the parties before me, unlike many of the cases where sole custody has been awarded in cases of high conflict, do not have a history of regularly denying each other parenting time. [ 116 ] While Ms. Y's use of physical discipline is concerning, I place significant weight on Ms.

Ailon's assessment of this issue given her observations and extended time with the family, and I do not find that the boys are at physical risk while in Ms. Y's care. I also note that the investigator confirmed that Ms. Y was open to learning other parenting/discipline strategies. Ms. Y confirmed in Court that she would not physically discipline the boys again. Both parents are also committed to working with a home support worker to promote consistency in parenting between the households. [ 117 ] These children are quite young and Ms. Ailon reported how they miss one parent when in the other parent’s home.

The report detailed positive, affectionate relationships between each parent and the children.

I find that the children are emotionally bonded with each parent and it would not be in their best interests to significantly decrease the parenting time of either party. [ 118 ] Lastly, while shared parenting should not be ordered in the hopes that things will improve, I do find that settling the financial matters through this trial will go a long way towards lowering the conflict. [ 119 ] On balance, I find it remains in the children’s best interests for both parties to share equal parenting time, including holiday time. v.

Decision Making Regarding the Children [ 120 ] The question of how major decisions for the children should be made is more difficult. Sole decision making is best suited where one parent has the children the majority of the time and is well positioned to make decisions in their best interests. I have already decided that it is in the best interests of the children for them to spend approximately equal time with both parents in a shared parenting arrangement. [ 121 ] However, I find that disagreements over decision making respecting the children is a source of conflict between the parties.

Continuing with joint decision making will create more conflict and prompt more court applications. I also find that parallel decision making, for example allowing one parent final decision-making power in health care and the other with respect to educational decisions, will not relieve the conflict. There is too much potential overlap between these spheres, given the evidence of some of the challenges the children face in their learning and mental health. [ 122 ] Both parents have been diligent in ensuring the children have regular visits to the doctor, dentist and eyecare. While Mr.

M does not have confidence in flu shots for the children, they are fully vaccinated for the usual childhood illnesses and he accepts the science in this regard. [ 123 ] Ms. Y has significant mistrust of health care related to the children’s psychological needs. Her reluctance to allow RM to be psychologically assessed, even after she learned about the purported killing of a dog, is concerning. [ 124 ] Ms. Y also does not appear to recognize the significance of recent reports of WM’s alleged suicidal ideation and any urgency associated with same.

Her affidavit and testimony in response to reports of WM’s comments were focused mainly on being falsely accused by Mr. M, and the school’s process for sharing this information. She only reluctantly acknowledged, when pressed in cross examination, that a child saying he was going to harm himself was a serious matter. She eventually agreed to having a counsellor for WM, but only if she and Mr. M could be present at the same time to receive the information. I understand that Ms.

Y wants to ensure full transparency; however, in both her affidavit and testimony she did not appreciate the seriousness of WM’s reported comments. Rather, her focus was on protecting herself in the eyes of professionals and further litigation. [ 125 ] Ms. Y also admitted in cross examination to previously recording the children’s doctor when they were being examined, even though she did advise the doctor the next day of the recording.

This type of behaviour is disrespectful to medical professionals and not conducive to these essential relationships. [ 126 ] The parties must meaningfully engage with each other and attempt to make decisions regarding the boys together. However, if there is an impasse regarding any major health care and medical decisions for the boys, I find that it is in the best interests of the children for Mr. M to make the final decision.

Major decisions would include arranging for any recommended psychological testing and regular counselling. [ 127 ] With respect to the children's education, both parties are quite involved with the children’s school and know the teachers and

the principal. Ms. Y also speaks French, which is helpful in assisting the children with their school work. [ 128 ] There is evidence that at least one of the children may have some learning challenges, and there may be educational assessments needed in the future. I find that for the sake of consistency and streamlining of decision making, in the event of conflict or disagreement between the parties, Mr. M should also have final decision-making authority with respect to any major educational decisions. [ 129 ] Regarding recent events, Ms.

Y appears not to understand or appreciate the school’s obligation to report child welfare concerns and that it may have been reasonable for the school to not share those concerns with the parent who is the subject of one of the concerns. That being said, there is little evidence before me that Ms. Y will allow these recent events to sour her relationship with the school going forward. [ 130 ] Accordingly, my refusal to designate Ms. Y to make major educational decisions for the boys is based mainly on my previous finding that Mr. M is better positioned to make decisions for the boys in the health care sphere.

Educational decisions have the potential to overlap with health care decisions, and it is preferable, in the case of an impasse, to have one decision maker to reduce conflict. [ 131 ] In sum, I find it is in the best interests of the children that Mr. M have final decision-making authority over major decisions regarding the children’s health and education, in the event the parties cannot agree. In doing so, I acknowledge that Ms. Y’s distrust of professionals may have arisen, in part, due to Mr. M’s previous reporting of her conduct and her position that she must be able to defend herself.

However, the focus with respect to the children must always be on their best interests and I find that Ms. Y is not always able to place the children’s best interests before her own when making, in particular, health care decisions for the boys. [ 132 ] Allowing Mr. M final say with respect to major educational and health care decisions will tilt the balance of power in this parenting relationship in his favour, and admittedly I do not have total confidence that he will wield this power wisely and generously. However, I also do not have confidence that Ms.

Y would use this power wisely and generously, if I chose her to be the ultimate decision maker. When considering other factors as set out above, I find that Mr. M is better placed to have final decision-making authority with respect to the boys’ health and education. [ 133 ] Both parties will remain on all health care and school documentation as joint guardians, and both have the right to be notified of any information pertaining to the children’s health, dental and eye care.

Both parties also have the right to engage with and attend appointments with teachers, school administrators and obtain medical information and treatment plans from any doctors or health care providers. Mr. M must meaningfully consult Ms. Y when making any major decisions with respect to the boys’ health and education. [ 134 ] Further, certain parameters for medical testing will be set out in the order arising from this trial.

For example, the children will stay as patients with their current paediatric doctor, and eyes and teeth will be routinely checked twice a year or as recommended by the relevant medical professional. Either party may also, after informing the other, make routine appointments with respect to the children’s health care. [ 135 ] Any psychological testing will only occur on the recommendation of a paediatrician or other qualified medical doctor.

The parents will engage with the in-home support worker as recommended by Children’s Services. [ 136 ] Either party may make decisions with respect to any urgent or emergency situations that arise when the children are in their care. [ 137 ] To be clear, it is only if the decision can be characterized as major, which includes counselling and psychological testing, and only if there is an impasse, that Mr. M will have final say. However, health care and educational professionals will be advised that Mr.

M has the final say with respect to any major health care and educational decisions. [ 138 ] With respect to extracurricular activities, each parent may choose up to two extracurricular activities for each of the children per year, to a total cost of $700 per child for the two activities combined. Both parents must take the children to those designated activities even if the activity is chosen by one parent but occurs to some extent during the other’s parenting time. [ 139 ] For any further extracurricular activities, the parents must agree as to the activity and the cost.

Both parents acknowledge that sports are beneficial for the boys, particularly RM, and the parents would also like the children to participate in certain artistic type lessons. However, too many activities will lead to conflict as the activities each parent prioritizes will impinge on the other parent’s time. These parents do not have the strong communication skills required to balance the children attending numerous activities. They also do not have the income to pay for these activities. [ 140 ] Mr. M also provided some evidence that Ms. Y would not sign the children’s passport for travel. In turn, Mr.

M will not consent to the children travelling internationally with Ms. Y to any country that is not a signatory to the Hague Convention. Mr. M is fearful that Ms. Y may return to Cameroon with the children and, because Cameroon is not a signatory to the Hague Convention, he will have no means to retrieve the children. Further, Mr. M is fearful that the children will become a “target” in Cameroon because of the perception that the children have wealthy parents. [ 141 ] Ms. Y has family in Cameroon and it is reasonable, at some point, for her to travel there to allow the children to know their extended family.

However, it is also reasonable for Mr. M to have concerns, given the ongoing conflict, whether grounded in fact or not, that he may have difficulty retrieving the children if they are taken to Cameroon. [ 142 ] If one of the parents would like to travel internationally with the children, that parent must seek the other parent’s consent. However, if there is conflict, the travel will simply not occur.

It is not necessary for these children, given their current ages, to travel internationally in the foreseeable future and any benefit derived is significantly outweighed by the conflict that it creates between the parents. [ 143 ] In terms of applying for passports, both parents’ signatures are required.

D. Child and Partner Support [144] Since the date of separation, there have been numerous interim orders made by the Court regarding child and partner support.The history of those interim, without prejudice, child and partner support orders is as follows: • July 31, 2015: Kent, J ordered child support of $2,300 per month payable by Mr. M starting September 1, 2015, support for Ms. Yof $4,700 per month starting September 1, 2015, plus a one-time uncharacterized support payment of $5,000 to be paid on or beforeAugust 15, 2015. The Court also ordered that Mr. M pay Ms.

Y $7,000 on or before September 15, 2015 as an advance of any amountsowing by him to her in the action. • August 28, 2015: Hughes, J varied the above to commence child support and partner support for Ms. Y on October 15, 2015dependant on Ms. Y vacating the Colgrove Property by October 1, 2015 and to change the due date of the $7,000 payment to September1, 2015. Additionally, $1,500 in Superstore gift cards was to be paid to Ms. Y on or before September 1, 2015. • January 15, 2016: After a variation application was brought by Mr. M, D.B. Nixon, J ordered that Mr. M’s Guideline income beset at $164,800 per year.

His child support payments remained the same, but his partner support payments to Ms. Y were varied to$3,800 per month starting February 15, 2016 and then decreased further to $3,000 per month starting October 15, 2016. • July 14, 2016: Rawlins, J granted an interim consent parenting order, ordering that the parties shall share parenting time on a 50/50basis on a week on/week off alternating schedule. • June 1, 2017[6]: Marriott, J as case management Justice imputed Mr. M’s income at $72,000 per year for a period of six monthsand imputed Ms. Y’s income at $25,000 per year.

She ordered that, starting June 15, 2017, support payments should be varied to $1,027per month for child support payable by Mr. M and that support payments to Ms. Y should be varied to $500 per month. • June 1, 2017: In a second case management order, the Justice restated the terms of the other June 1, 2017 order but began thepayments as of June 1, 2017, rather than June 15, 2017, further adding that Ms. Y’s Guideline income shall be set at $25,000 for a periodof six months, and that the support payments payable to Ms. Y of $500 would last for a period of six months[7].

As the second Orderwas filed later I presume that it varied the first June 1, 2017 Order. • May 3, 2018: The case management justice set Mr. M’s income at $164,000 per year starting January 1, 2018 and ordered childsupport payable by Mr. M in the amount of $2,318 per month. • February 25, 2019: The case management justice imputed Mr. M’s income at $60,000 per year and Ms. Y’s income at $28,000 peryear, effective January 1, 2019. She also ordered set off child support payable by Mr.

M in the amount of $431 per month effectiveJanuary 1, 2019. [145] Interim orders are subject to adjustment at trial: Davies v Davies, 2015 ABCA 17 at para 5; MacMinn v MacMinn (1995), (AB CA), 174 AR 261 (CA); Hartley v Del Pero, 2010 ABCA 182 at para 9; Durocher v Klementovich, 2013 ABCA 115at para 20. As emphasized by the Court of Appeal, trials often produce different and better evidence than that available on an interimapplication. The evidence before me in this long trial is significantly different than what was before the Court on these interimapplications and accordingly some adjustment is necessary.

While Ms. Y claims retroactive child and partner support from the time ofseparation, her claim is not for a retroactive award in the true legal sense of that term. At this trial, I am adjusting prior interim awards onmore fulsome evidence for child and partner support claims that were made almost immediately upon separation.[8] [146] Ms. Y alleges that Mr. M has hidden income and that his income as stated in his tax returns does not reflect his actual incomeand therefore, income must be imputed to him. Ms. Y further alleges that Mr.

M had to be forced to provide proper financial disclosure atevery step of the litigation, emphasizing that he has failed to provide financial statements for Katharine Enterprises Ltd. (“KatharineEnterprises”) (a corporation in which he has an interest), tax returns from Blaze Cameroon (a company which he operated and managedin Cameroon and of which he was a 99 percent shareholder), pay stubs from his current employer Barrel Oil Corp. (“Barrel”), and theprice of the shares he recently purchased with Barrel. She also points out that Mr.

M has refused to apply for any subsidies for thechildren’s activities during the period when he was allegedly without income. She contends that Mr. M refused to do so in order to avoiddisclosing his full income. [147] Mr. M claims that there has been an overpayment of child support since the date of separation. For the most part, he agrees withhis line 150 income as set out in his income tax returns, noting a significant business loss in 2017. He opposes consideration of anyincome derived from withdrawing from his RRSPs, which he argues would be unfair to include. Mr. M maintains that it was appropriatefor Ms.

Y to have had income imputed to her by the Court, as was done in the interim order approximately twenty-five months after theseparation. He argues that she has no ongoing entitlement to partner support given that she is fluent in French and English and should beable to easily obtain work. [148] Mr. M also submits that he has provided all he can with respect to disclosure and that he has provided numerous separate filingsall throughout the litigation. i. Mr. M’s Guideline Income [149] With respect to allegations of non-disclosure regarding Blaze Energy and Katharine Enterprises, Mr. Mele testified that Mr.

Mrequested the financial statements from him but that they were not prepared due to the financial state of the company. I accept Mr. Mele'stestimony on this point. There was also some evidence that disclosure of Katharine Enterprises and Blaze Energy was offered in someform but was conditional on Ms. Y signing a non disclosure agreement. I find that Mr. Mills had limited ways to compel certaindisclosure with respect to Katharine Enterprises and Blaze Energy.

[ 150 ] With respect to Blaze Cameroon, however, I find that Mr. M should have made more efforts to provide the income tax returns of Blaze Cameroon, even though the returns were in the hands of Blaze Energy. Unlike Blaze Energy and Katharine Enterprises, Mr. M was a 99 percent shareholder of Blaze Cameroon. With respect to Barrel, Mr. M provided a T4 and a confirming letter from his employer and I accept this in lieu of pay stubs. Mr. M also disclosed income tax information, numerous credit card statements, some type of financial statements for Blaze Cameroon for 2015 and 2016 and his RRSP statements.

In sum, I find that Mr. M met some, but not all, disclosure obligations. [ 151 ] Related to disclosure, Mr. M did not provide proper source documents and justification for claimed expenses on his income tax returns. [ 152 ] Mr. M was not credible with respect to understanding certain financial information. He is a sophisticated businessman who started Blaze Energy with Mr. Mele and was the driving force behind Blaze Cameroon, operating in Cameroon. Indeed, he owned 99 percent of the shares in Blaze Cameroon, with Mr. Mele owning the remaining 1 percent. Mr. M created the Trust just prior to taking vows with Ms.

Y in a religious ceremony in Cameroon and then, around the time Ms. Y moved to Canada, transferred the Colgrove Property into the Trust. The Colgrove Trust held shares in Katharine Enterprises. Diamond Willow Enterprises was another corporation in which Mr. M held shares along with other family members. [ 153 ] Yet when faced with questions about his large business loss claimed in 2017 on his income tax return and his rental income and expenses, Mr. M stated that he did not understand the tax returns and continuously deferred to his accountant. His accountant did not give evidence.

Despite the disclosure and income from Katharine Enterprises being an ongoing issue, he testified that he did not know where his 2015 dividend income came from until presented in cross examination with a T5 slip showing the income was from Katharine Enterprises. He further answered that he did not apply for any subsidies for the children when he was unemployed saying that he did not know how to do that “subsidy stuff” and he found it confusing. [ 154 ] Mr.

M was also cross examined at trial about his prior application to the Court in the fall of 2015 and early winter of 2016 for a variation of partner and child support based on a reduction of his income. Based on the information before the Court, the assigned justice found Mr. M’s income to be $164,800 and ordered costs against Ms. Y. However, Mr. M’s line 150 income for 2015 was $342,777, significantly higher. His line 150 income for 2016 was $196,989. [ 155 ] Mr. M may not have known the full extent of his income in the fall of 2015 when he was applying to the Court for a decrease in child and partner support.

However, he would have known that his income was going to be significantly more than the $164,800 assessed by the Court. Yet he still applied for and was granted a significant decrease in his child and partner support payments. [ 156 ] In February, 2017, Mr. M’s employment with Blaze Energy was terminated. His employment income for 2017 was $75,905 and his RRSP income was $153,168. Mr. M again applied to the Court for a decrease despite knowing that he had access to funds, through his RRSPs, that could have been used to support Ms. Y and the children. [ 157 ] Mr.

M paid partner and child support based on a Guideline income of $164,800 from February, 2016 until June, 2017 at which time the support orders were varied. In June, 2017, the Court imputed his income at $72,000. [ 158 ] Mr. M’s line 150 income is as set out below, however, in light of the inconsistencies between Mr. M’s testimony, the representations on his tax returns, and other evidence at trial, adjustments to Mr. M’s line 150 income are necessary. Year Line 150 Income on Mr.

M’s Income Tax Returns 2015 $342,777.69 2016 $196,989.85 2017 -$1,590,052 (negative due to a large claimed business loss) 2018 $7,362.42 2019 $169,396.14 a. Adjustments to Line 150 Income – Self-Employment/Business Losses [ 159 ] Mr. M provided minimal testimony to particularize the self employment/business losses claimed on his income tax returns. The table below contains the losses claimed from 2015 to 2019. Year Self-employment Income/Business Income Loss Claimed on Mr. M’s Income Tax Returns 2015 $0 2016 $0 2017 -$1,803,322 2018 -$34,242 2019 -$27,640 [ 160 ] Mr.

M testified that the losses in 2017 were incurred due to shares he had bought as an investment in Blaze Energy or shareholder loans, but that he “can’t break them down”. As set out in Kohlman v Bergeron, 2015 ABCA 410 at para 7 ,

section 8 of

Schedule 3 of the Guidelines allows for the deduction of “the actual amount of business investment losses suffered by the [payor] during

the year.” In Mr. M’s 2017 income tax return, however, he has a reported loss of $1,803,322.22 under line 135 (Self-employment, Business Income). [ 161 ] While I accept that Mr. M suffered losses due to the receivership of Blaze Energy, I do not accept, in the absence of more particular evidence and source documents, the amount in 2017 claimed as a loss for the purposes of calculating Mr. M’s Guideline income. I also find, given Mr.

M’s spending pattern throughout 2017 as set out in his credit card statements (expenses totalling $126,009 with significant travel costs), that including this loss would not fairly reflect the money that was available to him for support purposes. [ 162 ] I will, however, accept his 2018 and 2019 losses, for the purposes of assessing Mr. M’s income for child support purposes, without further evidence. I recognize that it remains Mr. M’s evidentiary onus to particularize his self-employment/business losses for these years and given his lack of specific source d

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