D.A. v. A.A.

IN THE SUPREME COURT OF BRITISH COLUMBIA IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: D.A. v. A.A., 2005 BCSC 370 Date: 20050316 Docket: E023384 Registry: Vancouver Between: D.A. Plaintiff And A.A. Defendant Before: The Honourable Mr. Justice Cullen REASONS FOR JUDGMENT The plaintiff, D.A. On his own behalf The defendant, A.A. On her own behalf Date and Place of Trial: February 14 - 17, 2005 Vancouver, B.C. I. BACKGROUND AND INTRODUCTION [1] The plaintiff, D.A., is 37 years old. The defendant, A.A., is 39. They met in 1995 or 1996 and began living together shortly after. They were married on May 31, 1997 and separated on August 9, 2002. There are two children of the marriage. The older is B., who was born on [ ], 1997 and the younger is N., born on [ ], 1998. B., who is 7, attends Grade 2 at S.[ ] School in Vancouver; N., who is 6, is in Grade 1 at the same school. [2] Since separation, except for one week, both children have been primarily resident with the defendant at her parents' home at G.[ ] Street in Vancouver. [3] The plaintiff presently lives in a two bedroom basement suite at [ ] - [ ] Avenue, in Burnaby. [4] On March 3, 2003, Master Donaldson made an order granting interim joint custody to the parties, with primary residence to the defendant on the condition that she continue to live with her parents at their G.[ ] Street house. Since November 26, 2004 the plaintiff has had access to the children from Thursday after school to Sunday at 6:00 p.m. every second weekend and on Wednesdays from 4:00 p.m. to 8:00 p.m. during those weeks when he doesn't have weekend access. [5] The plaintiff is currently employed as a carpenter with B.[ ] Ltd.. He earns $22.00 per hour in that capacity. According to his tax returns for 2002 and 2003, he earned $51,079.26 and $45,279.33 respectively in those years. In 2004, on the basis of his T-4's and pay stubs from both B.[ ] Ltd. and A.[ ] Ltd., for whom he did some contract work, he claims income of $42,000. There was evidence before me that Mr. D.A. has previously earned unreported income, although he expressed uncertainty whether he did so in the last 3 years. [6] Mr. D.A. is currently taking courses at B.[ ] with the object of obtaining an associate certificate in building design and architectural construction and design. [7] Ms. A.A. presently works as a hairdresser. She testified that her annual income from that is $10,000 - $12,000 plus tips. She also receives a child tax credit in the amount of $6,000 per year and $600 per month in child support from the plaintiff. [8] Ms. A.A. testified that she has completed a course in office administration offered through K.[ ] College and has in the past worked in that capacity. She testified that she is interested in taking courses to qualify her to obtain employment as a legal assistant. II. THE CLAIMS [9] The plaintiff is seeking an order of joint custody and joint guardianship of the children, an order sharing custody whereby each parent will have the children 50% of the time on alternate weeks, an order that neither party change their residence without giving the other party at least three months notice, and an order that neither party move away from the L.1[ ] unless agreed to by the other party. The plaintiff also seeks a reduction in the amount of child support that he pays, based on his past 3 years income, an order that the medical and dental bills be shared equally by the parties, an order that the children's extra curricular activities be paid for by whichever person signs them up for the activity and an order that each party pay 50% of the cost of school related activities for the children. [10] The plaintiff also seeks an equal division of the family assets which consist of the remains of the proceeds of the sale of the matrimonial home (amounting to approximately $40,000) and the furnishings and appliances from that home already to some extent divided between the parties. [11] With respect to the remaining proceeds of the sale of the matrimonial home, the plaintiff seeks an order that about $20,000 be paid back to an RRSP in his name, from which the funds were transferred into a homebuyer's plan to finance the down payment for the matrimonial home and thereafter that 50% of the total RRSP be transferred to the defendant as a spousal rollover, with the cost of the rollover to be shared 50-50 between the parties. The plaintiff also seeks a 50% contribution of the defendant to a Section 15 Report prepared by Dr. Robert Colby on December 15, 2003. [12] With regard to the defendant's custody of the children, the plaintiff seeks a further order restraining the defendant from consuming alcohol while the children are in her custody or care and that she continue to reside with her parents at G.[ ] Street until it is determined that the children have not, since July 2001, been subject to apprehension from the defendant by the Ministry of Children and Families and Community Services. [13] The defendant for her part, seeks an order of sole custody and guardianship of the children and a reduction in the access of the plaintiff presently established by altering his alternate weekend access from Thursday after school until Sunday at 6:00 p.m. to Friday after school until Sunday at 6:00 p.m. As far as holidays are concerned, she seeks an order that holidays are to be agreed upon between the parties and if not agreed to, then to be resolved by a third party. [14] Ms. A.A. seeks child support based on the last 6 years of the plaintiff's income, retroactive to "the first time the parties went to court." She also seeks retroactive spousal support. She opposes the plaintiff's application for her to pay 50% of the Section 15 Report and the plaintiff's application to have $20,000 of the proceeds of sale repaid to the defendant's RRSP and 50% of it rolled over to her. Ms. A.A. agrees that there should be an equal division of the family assets, but seeks an order that the parties' contribution towards the children's activities be shared in proportion to their respective incomes which she submits is a 75/25 split. [15] Both parties agree there should be an order of divorce and the defendant seeks a change of name to R., her maiden name. I am satisfied on the evidence before me that it is appropriate to make those latter two orders, and accordingly, there will be an order or divorce effective 31 days from the making of this order and the name of the defendant will be changed from A. to R.. [16] Much of the evidence before me on this trial concerned the dynamic of the relationship between the parties and between each of them and their two children. As is not uncommon, the parties did not hold a common view of either their own or each other's conduct and attitude in the family context. [17] Because of the issues between the parties and of their inability to achieve a consensus on what best would serve the interest of their children, on December 26, 2003, Madam Justice Gill ordered the Section 15 Report prepared by Dr. Colby and referred to earlier in these reasons. [18] In part, the issues explored by Dr. Colby and raised before me involve the plaintiff's assertion that the defendant, although a good mother, presented a potential risk to the safety and welfare of the children because she is an alcoholic who, in the past, failed to control herself and put the children in harm's way. [19] The defendant on the other hand attributed her drinking problems to the stress of being in what she characterized as an abusive relationship with the plaintiff and asserted that his temperament and disposition towards abusiveness make him unfit to be a custodial parent or guardian of the children and make any sort of cooperative regime impossible to sustain. [20] In response, the plaintiff asserts that the defendant's allegations of physical and emotional abuse where largely contrived after the fact or distorted by exaggeration to oppose his efforts to become involved with the children's care and upbringing and to disguise the nature of her own problems with alcohol. III. THE SECTION 15 REPORT [21] Dr. Colby conducted his assessment to evaluate the emotional and psychological status of the plaintiff and defendant relative to their ability "To provide a safe and appropriate parental environment for the children" in light of the counter-veiling concerns raised, and to make recommendations "with the needs of the children being paramount." [22] He noted in relation to the defendant that according to a police report on July 14, 2001 she was found passed out in her vehicle with the children in the back, unsecured in their seats, that she was described by the police as being belligerent and highly intoxicated and that the car had some damage to the front tire and rim. Dr. Colby also noted that as of July 19, 2001, the defendant was required to refrain from the use of alcohol and attend Alcoholics Anonymous meetings and was forbidden from transporting the children in a motor vehicle under the terms of a conditional order returning the children to the care of the plaintiff and defendant. [23] Dr. Colby also noted that in March 2003, Master Donaldson ordered that Ms. A.A. attend AA or other alcohol counselling, providing a report every 6 weeks and that the parties should have joint interim custody and guardianship with primary care to the mother, so long as she lives with her parents and remained "alcohol abstinent." [24] Dr. Colby noted that Ms. A.A. claimed that Mr. D.A. assaulted her by choking her and punching her in the face when she was nursing N. and that he is "an angry person who yells and frightens the children, spanking them" and "is verbally abusive." Dr. Colby noted that Ms. A.A. described the plaintiff as an angry abusive person who yells and is overly controlling and that she asserted they would be unable to share custody for that reason. [25] Dr. Colby also noted that Ms. A.A.'s history included two other instances of alcohol abuse including an admission to psychiatric care at S.[ ] Hospital May 29, 1999 - June 3, 1999 where she was diagnosed with alcohol dependency. [26] Dr. Colby also noted that Ms. A.A. raised the concern that on one occasion, when N. returned from a visit with his father, he said his father had punched him. [27] Dr. Colby noted evidence presented to him by the defendant that the defendant had not had any alcohol since the incident of July 14, 2001. [28] Dr. Colby conducted extensive interviews with both the plaintiff and the defendant, subjected them to psychometric assessment by administering certain psychological tests and observed them interacting with the children. As well, he interviewed the children and references provided by each of the parties. [29] In his interview with the plaintiff, Dr. Colby noted that the plaintiff presented the defendant as having ongoing problems with alcohol resulting in job loss on one occasion and resulting in her "passing out on top of B." while breastfeeding her on another. He also recounted an incident when the defendant passed out while looking after the children and her brother took the children and left a note for the plaintiff. Dr. Colby noted the plaintiff's assertion that he stopped telephoning the children while they were in the defendant's care, because the defendant would interfere with or listen in on the calls. He also represented that the defendant shouted at him during pick up or drop off times, denied hitting N. and told Dr. Colby that after prompting by B., N. told him that his mother told him to say that. [30] Dr. Colby noted that the plaintiff admitted "pushing" the defendant while she was nursing N. because she was saying "bad things" about his mother, but that he did not choke her or slam her against the wall as she alleged. [31] In response to an allegation that he offered to allow the defendant to have custody if she accepted his offer to buy out the matrimonial home, he denied that that ever took place and said that he offered her more than her share and it wasn't conditional anyway on the custody of the children. Mr. D.A. also referred to an incident when he was at the hospital with N. in January of 2003 and a confrontation developed between the parties after which he was asked to leave the hospital. He told Dr. Colby the confrontation arose because Ms. A.A. had received a letter from Mr. D.A.'s lawyer and was angry and she picked N. up and was trying to carry him away and pulling on his IV tubes. [32] On the psychological testing, Mr. D.A. scored in the intellectually superior range. He was administered the Minnesota Multiphasic Personality Inventory 2, and he was also administered the Child Abuse Potential Inventory and was assessed to be not similar to those who pose a risk of physical harm to children. He was administered a Parenting Stress Index and a Parent/Child Relationship Inventory. As a result of the various tests administered and Mr. D.A.'s scores, Dr. Colby concluded "In summary, Mr. D.A.'s responses do not raise any parenting issues. Although personality assessment is devoid of extreme psychopathology, it raises some concerns regarding his level of mistrust and suspicion in relation to others, although this might be a factor related to the current marital dispute actions." [33] In his interview of the defendant, Dr. Colby noted her assertions that when B. was first born, the plaintiff became very possessive about the baby and "directive" towards her. She described "a level of competitiveness that didn't make sense" and recounted an incident where the plaintiff would not turn B. over to her even when it was clear she wanted to be fed. [34] She described the plaintiff's unwillingness to engage with her family or to spend weekends in Washington State with them at their holiday trailer and in the result, he spent less time with his own children. [35] She described an incident when she alleged the plaintiff accused her of having an affair and hit her in the face while she was nursing N. and then pushed her, picked her up and banged her against the wall and pushed her out the bedroom door. She described another occasion where he grabbed her and accused her of spending an inheritance he received from his grandfather. She told Dr. Colby on that occasion the children were present and upset. She described another situation when they were driving to C.[ ] and they were arguing and he said he would stop the car and let her out. She described the plaintiff as not being involved with the children during portions of their marriage, instead choosing to party with students who were staying with them and rock climbing on weekends. The defendant related to Dr. Colby that the plaintiff agreed to attend an anger management program on her request, but after one session, said he no longer had to attend, he just had to "listen to her better." The defendant also told Dr. Colby that the plaintiff told her in front of the children that if she wanted more money, she should sell her body. She told Dr. Colby that at one point following separation, he told her if she would take $20,000 for her half of the house, he would let her have custody of the children. [36] The defendant told Dr. Colby that she only had three "relapses" in her drinking and that she has had nothing to drink since July 14, 2001. She detailed her involvement with the children and their participation in extra-curricular activities at her instance and asserted that the plaintiff was not supportive of the children's involvement in sporting activities. [37] The defendant said that the plaintiff had used the threat of withdrawing N. from soccer to attempt to control her behaviour at the exchanges of the children, although she asserted that it was he, not she, who was responsible for outbursts on those occasions. [38] The defendant denied being passed out on the highway on July 14, 2001 or being involved in an accident. She acknowledged that she did not give the plaintiff's number to the police at that time because she was afraid of him and that resulted in the children being taken into care. She denied any current problems with alcohol and indicated to Dr. Colby that she was attending Alcoholics Anonymous, had a sponsor, saw Dr. Horricks, a specialist in addiction medicine, and undergoes random alcohol testing. She told Dr. Colby she also attended a battered women's support group. [39] Dr. Colby administered the same tests to Ms. A.A. as he did to the plaintiff. She also scored in the intellectually superior range. In the Child Abuse Potential Inventory Test, although her scores were "not similar to a large population of individuals who present risk of physical abuse to children," she had a highly elevated score on the lie scale and faking good index, indicative of those who "may not acknowledge common human fault and frailty." [40] Dr. Colby summarized Ms. A.A.'s test results as follows: In summary, Ms. A.A.'s responses are devoid of clinical psycho pathology. She presents defensively in terms of personality assessment and on two of the parenting skills. She presents as similar to individuals who may not seek assurance or be forthcoming about personal problems. On one level that is common among individuals undergoing custody and access assessments. However this may raise some concerns in terms of her involvement in treatment programs related to historical issues which are raised in this assessment. Parenting skills do not raise any concerns. [41] Dr. Colby noted in his interview with B. that when asked what each parent says of the other, she responded "her mother says bad words about her father" but she forgets what they are and said that her father says "kind of bad words." [42] When N. was asked who tells the truth and who lies, he says his mother tells the truth and his father lies. He was asked what his father lies about and he said he forgot but "his mother says his father lies." [43] Neither child acknowledged being hit or spanked by either parent. B. strongly identified her mother as a source of her positive feelings. N. identified her as the person the majority of his positive feelings and communications were directed to, but also to some extent identified his father. [44] Dr. Colby concluded insofar as Mr. D.A. is concerned, that he can present as an angry and impulsive person, although there is no evidence that it occurs in relationship to the children. Dr. Colby identified it as a difficulty in working out an agreeable relationship between the parents in order to facilitate a joint parenting regime. [45] Insofar as Ms. A.A. is concerned, he concluded that her personality assessment presents her as a "very self-protective individual who attempts to avoid conflict and present herself in a conventional manner." Dr. Colby said her defensiveness raises a number of concerns including a tendency to minimize her problems. Dr. Colby did not, however, find any evidence that Ms. A.A. had any difficulty with alcohol in the last 2 ½ years before his contact with her, despite the fact that she was subjected to significant stresses during that period. [46] Dr. Colby made a number of recommendations in his report. They are reproduced below. 1. That Mr. D.A. actively engage himself in a therapeutic process to provide himself with resources to be able to better understand and deal with issues of his presentation and style in terms of how it would interfere with a cooperative, positive, and joint process of parenting his children. 2. That with the assistance of his counsellor, these parents can then enter into a third party process to resolve any difficulties they may have in a joint parenting process. It is not felt that, without a model to do so, they can independently engage in such a task. It also would not be appropriate for Mr. D.A.'s individual therapist to provide that service as it would not create a level of trust for Ms. A.A. to engage in that process. 3. It may be of benefit to Ms. A.A. to engage in individual counselling to address issues of her own fears and concerns which restrict her feelings of comfort and safety in terms of negotiating within an environment which has some degree of conflict in it. This may well be a sequential replacement to her involvement in addictions counselling processes as she appears to have been able to traverse those difficulties well. It may now be time to move from her treatment which dealt with her retreat into addictive behaviours at point of crisis, into one of skill building in relationship to a greater scope of personal and interpersonal dynamics. 4. If these parents are able to reach a point where Mr. D.A. understands the role of his responses in relationship to Ms. A.A.'s fears, and Ms. A.A. is more able to address her fears and become a more equal participant in a joint parenting process, then these children can be jointly parented by both individuals. This obviously cannot happen immediately and it would be recommended that the above therapeutic processes be engaged in for a six month period of time while there be an interim joint parenting process established. With their success in being able to communicate with each other demonstrated through meetings with a third party, these parents can be considered as reasonable prospects with a joint parenting process. 5. Ms. A.A., especially since her return to work, has lesser contact with the children. It does not present as an equal involvement since her time with the children tends to be at night and on one-quarter of the weekends per month. A more equitable sharing of parental time would be of benefit to these children. It is recommended the current accommodation arrangements be maintained with Ms. A.A. having the children in her care on alternating weekends. 6. If these parents cannot reach a process where they can jointly parent the children, Ms. A.A. has been able to provide for the children's needs throughout their lives. The main concern had solely been her binge drinking behaviours. Medical reports indicate that this is not a concern and that she has had no difficulties with random alcohol testing. Collaterals present her positively. She has spent a significant amount of time involved in alcohol treatment and Twelve Step Programs. Alcohol does not present a risk although with alcoholics there can never be a guarantee. It is therefore recommended that random alcohol testing become less frequent but occur a number of times throughout the year. With her involvement in a counselling program, that presents as an emotional resource for her which will assist her in dealing at points of conflict. With all those matters in place, it is felt that if these parents do not reach a joint parenting process that Ms. A.A. can provide for the care of the children, providing with a stable home environment and being actively involved in their school, medical and academic needs. She is the parent the children most closely bonded to although that should not present as a definitive reasoning in the above matters. 7. It is recommended for the reasons presented in this report, that the children undergo hearing tests. [47] At the trial, the plaintiff testified an called his mother L.M. as a witness. The defendant also testified and called her father and her sister-in-law as witnesses. Both parties placed a number of exhibits before the court. IV. THE PLAINTIFF'S EVIDENCE [48] Mr. D.A. detailed the history of his relationship with the defendant, to some extend paralleling what he had told Dr. Colby and what is set out in Dr. Colby's report. [49] He testified to the defendant's drinking problems during the course of their relationship and the difficulties that were associated including her loss of jobs and the stress placed on him by her behaviour. [50] He testified to several specific instances of her drinking to excess, including one in November of 1997 when he found the defendant passed out on top of B. while nursing her. He said after that the defendant promised him that she wouldn't drink again. He testified that despite that, there were other instances of drinking and he identified a period during May and June of 1999 when because of her alcohol problems she ended up in the S.[ ] Hospital in Rehabilitation. [51] The plaintiff also testified about buying the matrimonial home in April of 2001. He testified that the mortgage payments were large and the money problems that the parties had put their relationship under stress. [52] He also testified about the July 14, 2001 incident from his prospective. He related how he had been away for the weekend rock climbing and when he came home he found the house empty with a broken window. When he went into the house he found a message to call the Ministry of Child and Family Services and did so and found out what happened. He related how the children were eventually released back to him and the defendant on a conditional order which included a provision that the defendant was not to be left alone with the children. [53] He also testified about an earlier incident when the defendant's brother found the children in her care while she was seriously intoxicated. [54] The plaintiff chronicled the course of the parties' relationship since the July 2001 incident. He said that by Christmas of 2001 the defendant stopped putting her employment insurance cheques into their joint account and in March 2002 the parties had an argument, following which the defendant moved downstairs with the children and then decided to move in with her parents. [55] He testified that on April 17, 2002 she moved back home but that the relationship was floundering and it was under significant stress. [56] He testified that it appeared the defendant was exploring the possibility of dating through the Internet. He said the relationship ended on August 9th when they had an argument. The defendant began to scream at him and he yelled back. He said she ran out and called the police. He said it ended up that she would leave the home and he kept the children until the following Sunday when she came and picked the children up and took them with her to her parents' house. [57] The plaintiff testified that on several occasions the defendant has raised the issue of him physically assaulting the children. He said he has never done so and only spanked the children one time. [58] He detailed what he described as problems with access after separation until a judicial case conference on November 22, 2002 in which there was a schedule ordered that gave him two full weekends and every Wednesday evening per four week cycle. He described difficulties in communicating with the defendant after that and said that his telephone access was impeded by the defendant putting him on the speaker phone in the kitchen, which he found disruptive and humiliating. He cited an instance when his daughter B. said she was not allowed to talk to him and several instances where he was told the children were too sick to see him, even though they were at school. [59] He detailed an incident which occurred in January of 2003 when N. was in the hospital with appendicitis. He said he went to see N. and encountered the defendant who was upset because she received a letter from his lawyer. The plaintiff testified that she began to scream and call him names in front of his son and that she picked him up and went into the hall, dragging his IV tubes behind him. He said he unplugged the IV tubes so that they wouldn't be torn out. There was a scene and he was asked to leave because she had custody at that time. [60] He testified as to another incident on January 29, 2003 where his daughter called him and said she was too sick to visit, but when he later had access with his son, his son said that B. was very upset that she was not allowed to see her father. [61] He described another incident in June of 2003 when he dropped the children off, the defendant was upset and screaming at him because he had obtained her medical records through court order. He described her as screaming at him in front of the children. He described another incident in June of 2003 where he received a message on his cell phone from his daughter saying that she couldn't visit him because of a birthday party and he could hear the defendant in the background telling her what to say. The defendant testified as to a number of other incidents between himself and the defendant over the children including an occasion where he was contacted by the police who told him the defendant reported to them that he had threatened her over the issue of access. He said nothing came of that, but later he received a call from the Elizabeth Fry Society telling him that he had to book them to accomplish the exchanges of children because of a court order and he said there was no court order that he was aware of concerning this. [62] The plaintiff said that he then decided to correspond with the defendant by note or letter and also to bring a witness to the exchanges so there would be no problems with any allegations or accusations. [63] The plaintiff detailed some of the difficulty that he encountered in learning at the last moment of soccer practices or games that N. had during his access visits and referred to some correspondence between himself and the defendant concerning those matters. [64] The plaintiff also testified that on September 17, 2003 when he picked up his children, his son said to him "Daddy, why did you punch me?" When the plaintiff asked him what he was talking about his son told him he did it a week before. [65] The plaintiff said that he later asked his son if somebody told him to say it. His son said "yes" and then said "I don't know" but at that point B., who was present, told N. to tell the plaintiff who told him to say it and he said "Mommy told me to say that you hit me." [66] He said after that, he decided in consultation with his lawyer that it was appropriate to have a Section 15 Report ordered and that's why that application was brought. [67] The defendant said on neither during Christmas of 2003 or Christmas of 2004 did he have Christmas with his children. He said the defendant did not want to allow him any time at Christmas. A letter from the defendant dated December 13, 2004 was marked as Exhibit 11. [68] He said that initially there was a court date set for May 5, 2004 but his counsel was not ready, so it was moved to November 26, 2004. The matter did not go ahead then, but at that point the parties had a second Judicial Case Conference and the access was changed to its present regime of Thursday after school to Sunday at 6:00 p.m. on alternate weekends, and Wednesday from 4:00 - 8:00 during the weeks when there is no weekend access. [69] The defendant testified that there were conflicts regarding medical and dental bills and benefits. He said that he had informed the defendant that he would not be on the medical or dental plan until November of 2004 but that she took the kids to the dentist when there was no coverage, and as a result, two bills were incurred - one for $549.50 and another for $45.00 before he was on the medical and dental plan. [70] He anticipates there will be expenses relating to some orthodontic work for B. and that currently he has dental coverage which will cover 50% of the orthodontic work. [71] The plaintiff testified that Dr. Colby's report suggested that he undergo counselling for management of his anger. He said that he did indeed see a counsellor, Lawrence Stoyanowski on a number of occasions including May 20, 27 and June 3, 10, 15, 24 and July 20, 27 all in 2004. A report from Dr. Stoyanowski was marked as Exhibit 13. [72] Exhibit 14 was the plaintiff's financial statement dated September 23, 2004 and it included copies of his debt load from the bank, his previous lawyer, and his credit cards. [73] In particular, his Van City Visa which had an outstanding balance of $2,546.49 owing. His Capital One Platinum Mastercard Account showed $8,558.09 outstanding. His CIBC Visa showed an outstanding amount of $2,539.31. The balance owing to his former counsel as of January 4, 2005 was $34,537.21. The proceeds from the sale of the matrimonial home held in the plaintiff's former counsel's trust account amounts to $40,127.79 as of January 4, 2005. [74] In support of his evidence that the parties used RRSP funds loaned to a Homebuyer's plan as financing for the down payment on their house, the plaintiff tendered Exhibit 21 which showed that $19,700 was withdrawn from the Homebuyer's plan account in 2001 and that the $1,313.33 due in 2003 was not repaid resulting in deemed income to the plaintiff in that amount for the 2003 taxation year. He also exhibited his 2003 income tax return summary which showed that amount as being RRSP income. [75] Mr. D.A. also exhibited his 2004 T-4's from B.[ ] Ltd. showing his earnings as being $20,412.67 and his pay stub from A.[ ] Ltd. showing his gross year to date earnings as of September 11, 2004 as being $21,572.10. [76] He exhibited his 2003 income tax returns as $45,279.00 and his income tax returns for the year 2002 for $51,079.26 as Exhibit 26. [77] Exhibit 25 was a document entitled "Homebuyer's Plan - Request to Withdraw Funds from an RRSP" which related to an RRSP in the name of the plaintiff in the amount of $19,700. It was that amount that the plaintiff testified he withdrew from his RRSP to use as a down payment in relation to the matrimonial home. [78] The plaintiff placed before the court a series of notes and letters between the plaintiff and defendant from February 2004 and the present, showing the nature and extent of the communication between the plaintiff and defendant in relation to the children's activities and the issues arising with respect to access visits. [79] The plaintiff currently has a relationship with another woman who has a son who is 10 years old. Some of the correspondence between the parties reflects concern expressed by the defendant in relation to C.'s treatment of N. while N. was in the plaintiff's custody. [80] The plaintiff acknowledged that there were some incidents in which C.'s play was rough but he testified it was only in relation to a specific incident and is not an ongoing problem. [81] He also acknowledged that the fact that C. and N. tend to play together with boyish games, does make B. feel upset and stressed. He acknowledged that a letter from the defendant brought this to his attention and he has taken steps to deal with it. [82] As to the matrimonial assets, the defendant would come to the matrimonial house before it was sold and take things from the house. The plaintiff marked as Exhibit 36 documents reflecting the plaintiff's and defendant's contention of what each other has of the household furnishings and family assets. [83] The plaintiff testified that although the defendant claims that he physically and emotionally abused her, there were only four incidents where the police were called during the course of their relationship. He said the first was in June of 1997 and it was due to a friend of the defendants making prank phone calls from the house. The police came over and left. He said on the second occasion, the defendant had been drinking and that he was angry and was yelling at her. She called the police but changed her mind before they arrived and left the house. He said that the police took her into custody for being intoxicated in a public place on that occasion. He said the third occasion was when they were having an argument during which she slapped him and he shook her. He said the police came and then asked him to leave and he did so. [84] He said the final occasion was on August 9, 2002 when the police were called. He said he came home from work - the defendant was screaming at him and he yelled back at her. She called the police and said she feared for her life. He said that what actually happened was that the defendant had to go to work, so he kept the kids until the weekend when the defendant went to her parents' with the children. [85] In cross-examination it was put to the plaintiff that he was controlling. He denied that. It was put to him that he used to follow her around - he said that wasn't true, but he did when she was drinking, because she had been arrested for drunkenness before. It was put to him that he followed her when she went to an Alcoholics Anonymous meeting and saw her being hugged by other members of the group and then got in a huge rage and accused her of kissing the other members, as a result of which she phoned the police. He denied that. He said he was taking the kids and saw somebody hug her. The plaintiff was cross-examined about his upbringing and the state of his mother's alcoholism. It was put to him that he was a "latch key kid" and he ate beans out of a can. He said that was an exaggeration. He agreed that he didn't have much of a relationship with his own father. He was asked who his role models were and he talked about a boyfriend of his mother and his mother's brother. He agreed that he moved in with the defendant shortly after they met and said they had a discussion about it to the effect that she had been left by her fiancé and had difficulty in affording the rent, so he moved in. [86] It was put to the defendant that he earned money on the side which he didn't report. He agreed that he did and he agreed there had been periods where he was paid cash for jobs and did not declare the income. It was put to him that it was that way until she left. He said there were periods when he did and periods when he didn't. He said the jobs that came along were just opportunities; they weren't regular. [87] The plaintiff said he didn't think of the defendant as being "horrible." He said there have been problems, but he didn't think of her as a horrible person or mother. He said there had been inconsistencies due to her alcoholism and some lapses of judgment in parenting. He was asked why the defendant left him. He said he thought it was frustration due to the parties' financial position and said that the defendant had been transferring funds to her own account and sending the bank statements to her parents' house. He said he believed that the defendant was frustrated with his inability to make money. [88] The defendant suggested to the plaintiff that she left him because of beatings, belittling, and name calling. He said that was untrue - he had never physically hit her nor belittled her, although he often asked her to seek help. He said he didn't believe she was afraid. It was put to him that he grabbed her on one occasion, pushed her on a couch and called her a "stupid bitch." He denied that. It was put to him that she then got up and ran and he said "No, you are making that up." The defendant asked him why he sought help from a psychologist if he hadn't misbehaved towards her. He said he did it because Dr. Colby recommended it, and so he did to give effect to his right to be with his children. She cross-examined him about an incident where they were driving to C.[ ] and she suggested that he yelled and screamed at her until the children were wailing with fear. He denied that. He agreed that she asked to be let out of the car and he agreed that instead of completing her trip they turned and went back home because he said he was not going to let the children out of the vehicle. It was put to him that when they got back home, she moved with her kids into the basement. He agreed that she did so. He said he wasn't sure if it was a result of that incident or not. An incident was put to him where it was suggested that he threw her and N. off the bed while she was breastfeeding. He denied that. He said she never fell to the ground. He said in that incident he shook her because she was calling his mother a slut and that he pushed her out of the room while N. was on the bed. He said the police were called but because she said she had been punched in the face and there were no marks, they accepted his version of events and he was asked to leave but he was not arrested. [89] He agreed the fight on the way to C.[ ] was over money problems. It was put to him that the whole divorce was based on money and he said no - the main thing is the children's safety and his right to have contact with them. It was put to him that on one occasion when she was scheduled for surgery for an ovarian cyst that he forced sexual relations on her and he denied that. The defendant suggested that the plaintiff's needs overrode anyone else's and he said "no, that's not true." [90] The plaintiff testified that when the defendant is not drinking she is a very good mother. The defendant asked why he wanted her supervised. He said because he was worried about the children and he believed that they had been removed from her care again since 2001. The defendant asked the plaintiff how long she and the children stayed at her parents' place when they initially left in April 2001 before he phoned - he said it was about two weeks. He agreed that they met at the Night and Day Restaurant. He was asked if there were any conditions placed on her returning. He said he couldn't recollect any. He was asked why he took the Anger Management Course then - he said he had no recollection. He was asked whether she returned on the basis that he would get help and he said no. He was asked whether he reverted back to his former behaviour within two weeks and he said he couldn't answer that. [91] He was cross-examined about the RRSP and why his name was signed to it and not hers. He said the reason was because of her financial problem. [92] The plaintiff was cross-examined about his bank record and it was suggested that certain deposits were not accounted for by his salary. He was asked if he took any side jobs in the last three years and he said he might have - he wasn't sure - there was a chance but he's not entirely sure. He was asked if he had deliberately reduced his income - he said his base income is up but the hours of work have been slightly reduced and the overall amount has gone down but he said his annual income will eventually go up. He said he was asked why he voluntarily reduced his hours and he said to be with his children. He agreed that in one year he made $64,000 but he said he has had two hernia operations and there have been changes by his employer. The plaintiff was cross-examined by the defendant about the difficulty in making joint custody work given his anger. He responded that it was she that was angry towards him. He was asked if he'd ever helped out with the children's schooling in the classroom and he said he was still unsure of the circumstances. He was asked whether he had taken it upon himself to call their teachers and he said yes, but only recently had they become involved. He was asked if he volunteered any time and he said he didn't know the routines yet because he only recently became involved in the children's schooling. He was asked if he received their report cards and he said no. He said the defendant would not give them to him. He was asked whether he asked the teachers for them and he said he received some report cards but not all. The plaintiff was asked whether there was conflict in the access exchanges - he said that he believed it was she that created the conflict. He was asked if he took the children to Sunday School and he said no, he was not a church goer. He was asked if he threatened to remove N. from his soccer team if the defendant had outbursts during the exchanges and he said what he said was is that the defendant had had outbursts and they traumatized the children and he said he would bring witnesses to avoid those occurrences. He said he did not threaten to remove N. from soccer. [93] The plaintiff's mother, L.M. testified. She testified as to incidents that occurred relatively early in the parties' marriage when the plaintiff brought the children to stay with her when the defendant was drinking. [94] She also testified that she taught B. how to telephone her father in case something went wrong when she was with her mother. She testified that B. told her and her mother got very angry about that. She testified to being with the plaintiff and the children on an occasion when they had a meal at B.[ ]. She said the following week she was present with the plaintiff when he went to pick up the kids and heard N. say "Why did you hit me daddy?" and he had said it was the previous week when they were at B.[ ]. She said she was there and nothing of that nature happened. She was asked if she ever heard the plaintiff say anything negative about the defendant and she said no. She was asked whether she heard him say positive things about the defendant in front of the children and she said yes. She was cross examined about the stability of the defendant and the quality of his upbringing. She was asked whether the defendant phoned her and asked how to get the plaintiff to control his temper. She said no, she phoned and complained. She was asked if the defendant ever complained about abuse and she said that the defendant phoned her in an intoxicated state many times. Ms. L.M. was cross-examined about her own drinking habits and whether she was intoxicated while holding N. at Christmas. She denied that. V. THE DEFENDANT'S EVIDENCE [95] The defendant, Ms. A.A., testified herself. She said the marriage between herself and the plaintiff ended because of his abuse of her. She said she did drink on occasion and that the plaintiff kept alcohol in the house and continued to drink notwithstanding her problem with alcohol. She said she had made various attempts to settle the issues between them on the basis that the money they expended on lawyers would be better spent on raising the children. She testified that she believes that it would be very difficult to jointly parent the children because the plaintiff argues about everything. She testified she believes he has a need to win and does not look at what is best for the children. She said the children are well cared for with her and that her parents care for them in her absence. She said the family is an extended family and the children are very happy with the present arrangement. [96] She said she always made the children available for access unless they were too sick and that that occurred only three times in the past three years. She said that insofar as the alcohol use was concerned, that she was drinking when she and the plaintiff first met. They drank together but decided they would quit. She said she took the 12 step program and an AA program with a sponsor. Throughout the marriage she said there were a few times when she did drink. She attributed that to the ongoing abuse from the plaintiff and said she would bottle up the stress until it exploded and opined that she had "battered wife syndrome." She said she was unhealthy and had problems with her bowels and headaches while she was with the plaintiff and all her symptoms disappeared when she left. She said she believed her problems were stress induced. She said she has had nothing alcoholic to drink since July 2001. She had been subjected to random testing and there has never been any trace of any alcohol or drugs found in her system. [97] She said she didn't like the 12 step or AA program so she has turned to the church and has joined the W.[ ] Church and become a Christian. She said that's a "ladder" to overcome her stress and has been very uplifting for her. She said the children are going to the church as well. She said she intends never to drink again. [98] She talked about the children and their schooling. They attend S.[ ] School. B. is in grade two and N. in grade one. [99] The defendant said she took an active role in the children's schooling, that she volunteers to attend field trips with them. [100] She said until June of 2004 she worked on a part time basis to be home when the children were not in school as there was no money for daycare at the time. [101] She said in September of 2004 she went to work at M.[ ] in L.2[ ] Mall as a hairdresser. She said that her father would pick up the children from school and that the children love their grandparents and are very close to them. She said her family is a very friendly family and the children have 12 cousins who they see on a regular basis. [102] She said in the summer of 2004 the children were on a camping trip with the plaintiff for 12 days and she was essentially out of contact with them. She said she phoned on the cell phone, but 90% of the calls went unanswered. [103] She testified she wanted sole custody and guardianship of the children based on the parties' inability to communicate effectively. She said she felt the children may suffer from the plaintiff's abusive behaviour towards her, and that it would be better for the children for the two of them to have less contact. [104] She said the present access works except that the Thursdays should be changed to Fridays because it takes the children 40 minutes to get to school from the plaintiff's house on Friday morning. [105] She testified that she has been the main caregiver for the children since birth and throughout the separation and that because the children are happy and stable, she would like to maintain that role. [106] She also said she would like to have the previous orders disposed of. In particular, she testified she didn't think it was necessary for her to continue to live in her parents' home. She said she would like sole guardianship of the children and if that is granted, she would like to appoint her brother and his wife to be the children's guardians if something should happen to her. [107] She said that presently she works about 30 hours per week and makes $10,000 - $12,000 per year and receives tips on top of that. She said in addition she receives $500 per month as a child tax credit and an additional $600 a month in child support. [108] She testified she was also seeking spousal support to allow her to upgrade her employment skills by taking a two year legal assistants' course. She anticipates taking that "possibly in September of 2005." She said if on the other hand she could obtain an office job using her office administration training, she might take that instead. [109] She said when she was working, she earned approximately $16.00 per hour in her office job and she presently only makes $8.45 per hour and some tips as a hairdresser. [110] She testified she is also seeking that the plaintiff pay his share of extraordinary expenses in proportion to his income. [111] She also said that she believed the child support he should pay would be reflective of his last 6 years of income rather than his last 3 years of income. [112] The defendant testified that B. was not happy when the plaintiff's girlfriend's son C. was there for her visits and that when he spent the entire weekend there she came home and cried. [113] The defendant put a number of exhibits before the court including Exhibit 39 - a volunteer service certificate from Kawasa Neighbourhood House for the year 2003. Exhibit 40 was a letter from Dr. Horricks attesting to her ongoing sobriety. Exhibit 41 is a letter from Langley Family Services confirming her attendance at Langley Family Services Addiction Services in 2001 for 3 counselling sessions in August and September, and a letter dated February 26th from a social worker in the Ministry of Children and Family Developments confirming that the social worker did not receive any calls from the community regarding concerns and opining that there was no need for further ministry involvement to occur at the time and that the file was closed May 2, 2002. [114] The defendant also put in a letter from Dr. Blinkhorn, her physician, dated July 7, 2003 as Exhibit 46 reflecting his observations of a "dramatic improvement" in her physical, emotional and mental health since her separation from the plaintiff. [115] She also placed in evidence as Exhibit 48 a letter from her current employer, M.[ ], attesting to her good qualities as an employer. She also exhibited as Exhibit 52 an award of excellence she received in September of 2003 and as Exhibit 53 receipts that she paid for her children's activities. She also exhibited as Exhibit 54 B.'s progress reports from December 2002 to June 2004 and N.' for the year 2003/2004. [116] In cross-examination she was asked whether the parties were ordered to exchange their documents by February 7th and whether she did that. She said she tried. She agreed that the plaintiff delivered his documents first. She agreed that she reviewed his before she made her own book of documents. [117] She agreed that in January 2001 she got arrested for shoplifting. She was cross-examined about her property and income statements and was asked particularly as to whether she paid $600 rent to her parents and was questioned about her payment for heat and electricity, food and household supplies. She was referred to an affidavit that she swore on February 20, 2003 where she swore she had three slips in relation to her alcohol problem and that on July 14 she only had two drinks and when she started to feel the effects, she pulled over to the side and parked her car. She was cross-examined on the police report that suggested there was damage to the rim of her car wheel and was asked about that. She said that was just the police officer's opinion. It was put to her that two years previously she was drunk and passed out. She said she already admitted she had done so and she said that's not reflective of me now. She was asked whether she vowed never to do that again on the earlier occasion and she said I can never vow. She said you can't predict what tomorrow will bring but that she will do her best. She was asked if she was ever jailed as a violent drunk - she said she couldn't say for sure. She was asked if she had a habit of minimizing her problems - she said never. She said she admitted however that she was an alcoholic. It was put to her that when she was discharged from the S.[ ] Hospital on June 3, 1999 after being brought in by the police for being intoxicated in a public place, the physician who discharged her noted that she "described her relationship as being good (with her husband) though the arguments that they have are mainly over the alcohol problems." She said she would say anything to see her children - she said she's not denying she could have said it - she just couldn't recall. She agreed after being shown Dr. Blinkhorn's report that on February 26, 2003 she saw her doctor and talked about the stress of her break-up on that occasion. It was put to her that she waited 7 ½ months before raising the matter with her doctor. She said that was because that was when she had an appointment. She was asked whether she brought it to the attention of the doctor previously - she said she didn't recall, but that she did in February 2003. [118] It was pointed out to her that when she brought the issue of the stress of her break-up to her family doctor, it was the day after Master Doolan ordered that the plaintiff was to have sole custody of the children. She said that had nothing to do with it. It was suggested to her that that was the motivation for her the next day to claim psychological abuse. She denied that. [119] She was asked if she ever made any complaints to her family doctor during the time of her marriage and she said she didn't recall. [120] It was put to her that Dr. Blinkhorn's letter of July 7, 2003 (Exhibit 46) did not allege physical battery of her. She agreed. She was asked if she ever complained about being physically battered before the court proceedings took place - she said she couldn't recall. It was put to her she never had - she responded "I'm sure I have." She was asked to point to documents in which it was alleged and she said "no, it would take too much time and if I did, or not" and said it doesn't matter. She was directed to paragraph 27 of an affidavit she swore on October 15, 2003 which said as follows: Although I have consented for the sale of the house, I do not agree that the plaintiff could deduct the RRSP loan from the total proceeds. He received a cheque for approximately $6,000 as a tax break for taking out the RRSP in his name only. He did not share his tax refund with me or include my name on the RRSP. He is solely responsible for his own RRSP. Therefore the RRSP loan must be repaid out of the plaintiff's proceeds of the home. [121] It was put to her that she used some of the money from the $6,000 for family purposes. She said yes, some. It was put to her that the statement was therefore untrue and she said you put it in your account, and you were the only one who could withdraw it. It was put to her that some $2,000 of that $6,000 was used to purchase a gift for her after her surgery. She said it was shared with the family. It was put to her that on October 10, 2001 there was another $2,000 transferred to pay a loan which was used to purchase a vehicle that the defendant drove. She said if that's what you say it was, then it was. The plaintiff then suggested that he did indeed share the monies and she said no. He then put to her that a further $1,000 was transferred to the joint account - she said I'm not disputing that - and she said strike the spousal support - I don't need it from him. [122] The defendant was cross-examined about statements she made previously asserting that the plaintiff in August 2002 said to her "If you want some groceries, why don't you go downtown and get drunk - find a pimp and sell your body - then maybe you can buy some groceries." The plaintiff asked the defendant if that was true and she said "very true." It was put to her that she said that to Dr. Colby as well and she said "yes - and that's why I left you." She agreed that it was over a fight about money and that she couldn't do the grocery shopping as the interact banking card had insufficient funds. He put to her that as of August 5th the approximate balance in their chequing account was $31.89. She responded "who knows?" She agreed she wrote a note which set out the various expenses in July and ended with the assertion "There is no money - do you understand?" and that that note was written on August 7, 2002. [123] The defendant agreed that on August 8, 2002 she wrote a note to the plaintiff "in order to annoy him" and she agreed that on August 6, 2002 she deposited approximately $840 into her personal account and she agreed that on August 9th she went shopping and complained there was no money to make the purchases. It was suggested to her that she contrived the events in the first week of August in order to anger the plaintiff and to call the police. She denied that saying she left because he called her a whore. It was put to her that she didn't really go shopping because she had money in her account and chose not to use it. It was put to her that the events she attested to about him calling her a prostitute didn't happen. She swears it did happen and that on the same day he slammed her against the wall. It was put to her that her bank statements for her sole account were delivered to her parents' house rather than the matrimonial house since February. She was shown copies of her bank statements that showed an address of W.[ ] - the matrimonial home, up to December 31, 2002 and then for the period January 1st to February 1st 2002 the G.[ ] Street address. It was put to her that she transferred the address for her account to her parents' address and put money in. It was suggested that she planned ahead of time to move with the children to her parents' house and contrived the events of August 9th to advance her position. The defendant denied that. The plaintiff directed the defendant to look at her statement of account from February 28, 2002 to March 28, 2002 which showed a deposit of $3,062.79 on March 19th to her own account. She was asked where that came from and she said she had no idea - she thought it might have been a tax rebate - she would have to go and look. [124] It was put to her that her statement to Dr. Blinkhorn concerning the plaintiff's abuse of her was a lie. She denied that, and said it was true. It was put to her that her allegations of psychological abuse were lies. She said they were true. It was put to her it was a plot to remove him from the house. She denied that and said it was she who left, not he. [125] It was put to her that since her attempts to have him removed from the house were unsuccessful, she has acted out of anger and revenge. She said she was not angry. It was put to her that she was attempting to keep the children from him - she responded that she has given access and that she has always maintained that he can always have access with the children. [126] The defendant was cross-examined on her financial statement of March 10, 2003. She agreed that her estimate of income of $10,000 was an estimate only. She agreed that she had a child tax credit of $6,000 per year and that at the time she received child support payments from the plaintiff, she explained that she was told that she only had to include that in her financial statement if it was the subject of a court order. She agreed that her rent payment was not $600 as indicated in her financial statement, rather it was $500. She was asked if she had any rent cheque receipts for the rent and she said no, she paid cash. There were no receipts. She maintained that she contributed to the cost of the electricity and hydro but had no receipts. She agreed she had no receipts for the $400 she spent on food. [127] She was cross-examined on her financial statement of October 19, 2004. She agreed that her annual income was reported as $10,988 and it was from a T4. She agreed her child tax credit was $6,673.46 and she said she left the child support blank because there was no court order. She was asked whether her rent to her parents was $500 and she said yes, that was true, but she confirmed that she had no receipts for that. She said she gave her parents money when she could for heat and electricity. She agreed her food expenses in her second financial statement were less than her first. She said it was an approximate guess. She was cross-examined about a Ministry of Children, Family and Community Services Intake Report in relation to the children of the marriage and specifically an edited portion under the heading "Assessment of Report/Request" where it said "PCC show intake resulted in the children being removed children returned to mother under a supervision order." It was put to her that that was evidence that since July 2001 there had been other interventions by the Ministry. [128] The defendant said PCC meant past contact check. It referred to historical events that had to be reported whenever an intake report was generated. She said it did not relate to anything that occurred since July of 2001. She was asked whether if she moved from her parent's place she would give notice - and she said she certainly would. [129] The plaintiff cross examined the defendant as to whether she received a letter dated September 26, 2004 from him and she agreed she probably did. He asked where the response was - she said at that point, I started telephoning because she didn't overall like the feeling of notes. She said every time a note would come there would be a big upset. She said she couldn't take it emotionally. She reached her emotional limit. She was asked to point out any threat or intimidation in the September 26th letter. She said it wasn't a result of the last letter. She was asked whether she responded to his letter of September 29th, 2004 and she said "I telephoned you." She was asked about responses to other letters he wrote and she said there was no paper response. She agreed she must have received the letters because she made copies of them which she put into her binder of documents. It was suggested to her that she was the one who was unresponsive and not the plaintiff and she disagreed with that. [130] The defendant called L.R.. She is married to the defendant's brother and has been for 19 years. They have 3 children - all of whom are doing well. She said she was not aware of any incident where the defendant has been drinking in the past several years. She said she has babysat for them for the last 1 ½ years and she trusted her to do so. She was asked to her knowledge whether her children were always ready to see the plaintiff and she said yes - she said as far as she knew, he had never been denied access. She was asked about the plaintiff's sociability and she said he was social in that he spent more time with the children than with adults - she thought that was a little strange. She was asked if she trusted the defendant with her children and she said yes. She said she had seen the defendant drinking from time to time. [131] Certain questions and answers were read in from the plaintiff's examination for discovery and he was entitled to respond to them. VI. THE CLOSING ARGUMENTS [132] Mr. D.A. contended that for the past two years he has faced false allegations made by the defendant and that they have been disproved. He said no one testified they saw anything - he said the only evidence apart from that of the plaintiff is from what the doctor said and he didn't assert any physical abuse. He pointed out that the issue of abuse was raised by the defendant months after their separation and in the context of her having lost custody of the children the previous day. [133] The plaintiff questioned the defendant's evidence of what he said to her on August 9th concerning her prostituting herself. He pointed out that she knew there was no money in the joint account before she went shopping and that she knew she had her own income which she put into an account in her own name, the statements for which were directed to her parents' house, not to the matrimonial home. The plaintiff submitted that the events were not as she described in the period leading up to their separation and submitted that she had decided in advance of that that she was going to make her move and contrived the events to put her in the best possible position, to get custody of the children. [134] He submitted that there was no evidence that he had ever put the children at risk. He denied every having punched N. and submitted that that had been disproved. He submitted that he was a good parent and that for the past couple of years he was being pushed out of the children's lives, but pushed back in order to vindicate his rights as a parent. He submitted that the defendant treated the process as a joke - that instead of providing her own documents, she simply copied his and sent them back. He submits that there should be an order of joint custody and joint guardianship - that there should be an order that the defendant abstain from drinking - he further submitted that there should be an order that she continue to live in her parents' house until the issue of whether there has been any intervention by Child and Family Services and Community Services since July 14, 2001 is resolved. He submits that the defendant could have easily filled in the blanks and answered that suggestion but did not do so. He submits the division of matrimonial assets should be done fairly and submitted that even though there is not ideal cooperation, a regime of communication can be established between the plaintiff and defendant to facilitate joint custody. [135] He submitted that there should be shared custody such that each parent has the children one week on and one week off and that there should be a minimum of three months notice before either party changes his or her residence. [136] He submitted that there should be an order that neither party is to move out of the L.1 unless agreed to by both parties and that 50% of Dr. Colby's report should be paid for by the defendant, given that it was her assertion that he punched N. that caused it to be ordered. [137] He submitted that his child support payments should be reduced and it should be based on the last three years of income. He submitted further that the medical and dental expenses should be shared 50% each and the children's outside activities should be paid by each party who signs them up for those activities. He said with respect to school activities they should be paid 50-50 by each parent. He further submitted that the RRSP should be paid back from the proceeds of the sale of the house and 50% of it transferred to the defendant as a spousal rollover with the cost of that transfer back being shared 50-50. [138] In her submissions, Ms. A.A. submitted that she should receive sole custody and guardianship of the children based on the plaintiff's temperament and their lack of ability to communicate between the two of them. She submitted that the plaintiff needs anger management counselling and that if he takes it, then looking down the road after 6 months, the custody and access provisions could be changed if he gets a hold of his anger. She submitted as far as access is concerned that the children are not very happy with the extra day and they liked it better when the access was Friday to Sunday, so she submits it should be changed from Thursday to Friday. She submitted it should be maintained on alternate weekends and if they are able to develop communication, then a more flexible schedule could be developed. She submitted it would be ideal for children to be with both parents. She submitted holidays are to be agreed upon and if the parties are not able to agree, then they should go to a third party to mediate. She submitted that the child support payments should be based on the last 6 years of income because they plaintiff has deliberately reduced his hours in support of his claim and she submits there is evidence from which I can infer that he has made money in the past three years from outside jobs. She submitted that the plaintiff's bank statements don't seem to show a regular deposit of a pay cheque and there is no way to know for sure what his income is on the basis of all the evidence. [139] She submitted that there should be an order for retroactive spousal support based on the fact that all the attempts to settle cost a great deal of money. She submitted that the child support payments should be retroactive to the first time the parties went to court. She submitted that she had no knowledge of the RRSP. She submitted that if she had, she would have tried to pay it off and submitted that the plaintiff received the tax refunds into his own bank account and yet he wants her to pay $10,000 back into the RRSP - the net effect being that he would only be paying back $4,000 if he gets the benefit of the $6,000 rebate. She submitted with respect to the Section 15 Report that she would not pay for that. She submitted that she reacted as any mother would when N. told her that his father punched him - she said she was not coaching him - she simply told him that if anyone does that to him, he should say so. She submitted that the evidence does not establish that there is any form of communication between the arties and that any attempt to communicate over joint custody will lead to arguments and fights. [140] She submitted that the household furnishings were worth about $15,000 and that she took approximately $5,000 out and that the plaintiff threw some loads into the dump. She submitted that the plaintiff has not contributed to the children's activities and that he should contribute on the basis of his income versus hers, three quarters to one quarter. She also asked to have her name changed to R. and submitted that she did not accuse the plaintiff of anything that he has not in fact done. VII. CONCLUSION (i) Custody and Access [141] After considering the evidence of the plaintiff and that of the defendant, as well as the report of Dr. Colby, I am satisfied that despite the history related by both parties and the manifest difficulties which whey have had, that it would be in the best interests of both children to grant joint custody and guardianship. [142] While I do find that the plaintiff has in the past not been fully engaged as a father to his children, I find that since separation he has made genuine efforts to become involved with them, to moderate his behaviour towards the defendant and to attempt to establish a cooperative regime. I do not find that he has acted abusively or inappropriately towards the children or that he would present them with an unsafe or inappropriate "parental environment." I conclude that he did not punch N. as was alleged or at all. [143] Insofar as the plaintiff's conduct towards the defendant is concerned, I accept that it was at times angry and intimidating. Even on the plaintiff's evidence, which I accept, that he only once pushed the defendant when she was saying bad things about his mother, that nevertheless reflects a lack of self control contributing to the defendant's feelings of intimidation and fear and is part of the dynamic which makes it difficult to re-establish the necessary level of communication to cooperate or engage in joint child raising. [144] I accept, however, that by undergoing therapy as recommended by Dr. Colby, by attempting to maintain communications with the defendant by means of notes and letters, and by being more involved in the activities of the children, Mr. D.A. is attempting to establish a workable relationship with the defendant over the children. To assist him in that endeavour, I order that he take the Parenting After Separation course. [145] As far as the defendant is concerned, while I find her in her evidence to have exaggerated in some aspects, I accept that that is a product of the high degree of defensiveness identified by Dr. Colby in his assessment of her as "an extremely private person who has an adverse reaction to direct challenged and implied threat" and who "distrusts" and "fears" the plaintiff. [146] While Ms. A.A. opposes joint custody and guardianship, as Dr. Colby noted, she has also sought a cooperative involvement with the plaintiff in the past, reflecting a willingness to attempt to participate with him in raising the children. She has also in her submissions before me, indicated a willingness in the future to attempt to achieve a level of cooperativeness conducive to joint parenting. [147] In my view, it is appropriate to order, in keeping with Dr. Colby's recommendations, that Ms. A.A. engage in individual counselling "to address issues of her own fears and concerns which restrict her feelings of comfort and safety in terms of negotiating within an environment which has some degree of conflict in it." As Dr. Colby suggested, this appears to be the next logical step in progressing from her involvement in "addictions counselling processes" and will assist her as well as the plaintiff in addressing the issues between them. [148] I also order that Ms. A.A. take the Parenting After Separation course and, while I am satisfied that with the individual counselling she need not continue with Alcoholics Anonymous or the Twelve Steps Program, she should still be subject to random drug testing and assessment by Dr. Colin Horricks as he may deem necessary, and I order that she not consume any alcohol. [149] I am satisfied, given the efforts made by Ms. A.A. to remain free of alcohol, that she can be relieved of the order requiring her to continue living with her parents. Before she is to move from their residence however, she must file with the court a letter from the Ministry of Child and Family Services and Community Services confirming that the children have not been the subject of an apprehension since July 14, 2001 for any reason related to Ms. A.A.'s conduct. [150] I also order that the parties will attempt to resolve any difficulties themselves by agreement, and if they are unable to agree on any course of action regarding issues of custody or access, they are to seek the intervention of a mediator. The court recommends that they contact the Honourable Ross Collver, a former Judge of the British Columbia Supreme Court, who has offered his services as a mediator through the Boys and Girls Club of Greater Vancouver. If the parties are unable to agree upon a mediator, they have liberty to apply. [151] I am not satisfied that at this time, it is in the children's best interests to be living 50% of the time with each parent. That dynamic requires more cooperation than the parties have yet achieved. While I am satisfied that the parties are capable of working towards such an arrangement, I conclude that for the present, the primary residence of the children should remain with the defendant, with the plaintiff having access from Wednesday after school to Sunday at 6:00 p.m. on alternate weeks, and Wednesdays from 4:00 p.m. to 8:00 p.m. during those weeks when the plaintiff did not have weekly access. [152] The parties will share custody of the children during school and summer holidays on a 50-50 basis. Each party will have the children on Christmas Day on alternate years, with the plaintiff having the children for Christmas 2005. [153] The joint custody and guardianship will be exercised in accordance with the following terms: (a) The parents are to be the joint guardians of the estate of the children. (b) In the event of the death of either parent, the remaining parent will be the sole guardian of the children. (c) The defendant will have the primary responsibility for the day to day care of the children, except as otherwise provided and will have the obligation to advise the defendant of any matters of a significant nature affecting the children. (d) The defendant will have the obligation to discuss with the defendant any significant decisions which have to be made concerning the children, including significant decisions concerning health (except emergency decisions), education, religious instruction and general welfare. (e) The plaintiff and defendant will have the obligation to discuss the foregoing issues with the other and each parent shall have the obligation to try to reach agreement on those major decisions. (f) In the event that the parents cannot reach agreement with respect to any major decision despite their best efforts the defendant parent shall have the right to make such decision. (g) The other parent shall have the right, under s. 32 of the Family Relations Act, to seek a review of any decision which that parent considers contrary to the best interests of the children; and (h) Each parent will have the right to obtain information concerning the child directly from third parties including teachers, counsellors, medical professionals and third party caregivers. (ii) Child Maintenance [154] I have concluded on a review of all the evidence that the plaintiff's income should be fixed at $50,000 per year. It is clear that he has the capacity and has in the past earned significantly more than what is currently reflected in his income tax returns. In the year 2000, for example, he earned approximately $64,000 in reported income. It is also clear that he has earned income that was not reported and he was not definitive in his evidence whether he had done so or not in the past three years. I note his evidence that he has had two hernia operations that have impeded his income earning ability and that he has reduced his extra work to spend more time with his children. Nevertheless, I am satisfied that it would be appropriate to fix his income at $50,000 which obliges him to pay $696 per month in child support. The parties will share the extraordinary expenses of the children in proportion to their income. The expenses for extra-curricular activities which are not extraordinary expenses will be borne by the person signing them up. The extraordinary expenses of course include the medical and dental expenses identified by the plaintiff. (iii) Spousal Support [155] The defendant basis her claim for spousal support on the discrepancy between her present income and that of the plaintiff and her past inability to pursue other avenues of employment because of her obligations towards the children in the course of the relationship. She testified that she was considering pursuing a legal assistant/paralegal course, but if that she were able to secure employment in office administration for which she has some training and experience, she would forego the paralegal course. The defendant testified that she would be able to earn approximately twice the hourly rate she was presently earning as a hairdresser in office administration. She was seeking spousal support for a two year period while she undertakes the paralegal course. The statutory criteria for granting spousal support are set out in s. 15.2(4) of the Divorce Act, R.S., 1985 and the objectives in s. 15.2(6). Those sections read as follows: (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse. (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [156] The parties cohabited and were married for approximately six years. It is clear that the defendant has been the primary caregiver for the children throughout that time and since separation. It also appears that the plaintiff did support the defendant while she took some retraining to qualify in the area of office administration. It also appears that while she may have had some difficulties in maintaining employment because of her problems with alcohol, that has been resolved by her abstinence since July 2001. [157] I have concluded considering the principles underlying s. 15.2(4) and (6) as explicated in Moge v. Moge, (1992) 3 S.C.R. 813, it would be appropriate to order spousal support to the defendant for $700 per month for a two year period. In my opinion, given the setbacks she has encountered in establishing a career to bring her self sufficiency and that the primary responsibility for child rearing has fallen on her, it is appropriate to order such support to enable her to make a transition towards employment that will bring her self sufficiency. (iv) Division of Family Assets [158] Both parties agree that there should be a 50-50 division of family assets. At issue is whether the $19,700 identified by the plaintiff came from an RRSP in his name and whether that amount should be repaid to the RRSP from the proceeds of sale of the matrimonial home, with 50% of it to be rolled over to the defendant in a spousal rollover. I am satisfied that that amount did come from the plaintiff's RRSP and also that the refund he received from the purchase of that RRSP was used for family purposes and that the plaintiff did not get the sole benefit of it. That being so, it is appropriate that of the proceeds of the sale of the matrimonial home, $19,700 be repaid to the plaintiff's RRSP and 50% of the RRSP be conveyed to the defendant in a spousal rollover. The cost of the rollover will be deducted from the proceeds of sale before distribution of the balance to the parties. The other issues regarding the parties' respective claims for division of assets relates to the furnishings and possessions in the matrimonial home. On the basis of the evidence before me, it is not possible to precisely determine the relative shares of those assets which the parties presently have, as no values have been assigned to any of the items identified by the parties, nor are the parties able to agree on who has received what from the furnishings of the matrimonial home. I will make an order that the parties divide the furnishings so that each party has 50% of the value. Because of the uncertainty of the values of the assets, I have somewhat arbitrarily determined based on the evidence that each party will receive 50% of the value by the plaintiff paying to the defendant $1,500 for the value of the assets in his possession over and above the value of those in possession of the defendant. [159] I also order that neither party discuss the issues between them with either of the children of the marriage or with anyone else in the presence of the children of the marriage and I order that neither party make any derogatory comments about the other either to or in the presence of either or both of the children. [160] As I have already indicated, there will be an order of divorce, effective 31 days from the date of this judgment and the name of the defendant will be changed from A. to R.. [161] The orders which I have made are designed to assist the parties in achieving a relationship where they can serve their children's best interests by ensuring that each child is able to develop a full and meaningful relationship with each parent. While at this point the primary residence and responsibility for the care of the children continues to rest with the defendant, I am satisfied that in the long run, it is in the best interests of the children that the parties work towards establishing a foundation for equally shared custody and responsibility. I conclude that there should be a further review of the custody and access arrangement by the court in twelve months time and I therefore make that order. "A.F. Cullen, J." The Honourable Mr. Justice A.F. Cullen May 5, 2005 - Revised Judgment Corrigendum to Reasons for Judgment issued advising that paragraph 158 on page 52 is to be deleted in its entirety.