Court File and Parties
ONTARIO COURT OF JUSTICE DATE: June 9, 2021 COURT FILE No.: D403344/20
BETWEEN:
Alvaro Andres Moya Applicant
— AND —
Katrina Georgina Georgilis a.k.a. Katerina Georgina Naoum Respondent
Before: Justice Roselyn Zisman
Heard on: May 17, 2021 Reasons for Judgment released on: June 9, 2021
Counsel: Felix Rocca, for the applicant James R. Olchowy, for the respondent
Zisman, J.
Decision on Temporary Motions
Introduction and background
1These motions are with respect to parenting time and decision-making responsibilities regarding the child of the relationship, Vasilis Moya Naoum (“son” or “the child”) born […], 2019. The motions also are with respect to child support and spousal support.
2The Applicant (“father”) commenced an Application on March 4, 2020 as he alleged the Respondent (“mother”) was denying him regular contact with their child.
3The parties had a brief relationship. According to the mother, they met and began to date in April 2018 and according to the father they met and began to date in December 2018.
4They lived together for a brief time from about mid-January 2019 until they separated in September 17, 2019 that is, about a month after the birth of their son.
5Since the separation the child has resided in the primary care of the mother.
6According to the mother, the father especially in the last few months of her pregnancy was angry, aggressive, controlling and sometimes violent. The mother made up her mind to separate when the child was born but continued to live with the father for another month until she had the strength to leave.
7The case was set for a first appearance on May 11, 2020 but was adjourned several times by the court due to Covid-19 and the suspension of regular court services.
8There were several case conferences and temporary orders for supervised access to the father and an order for child support prior to the motions now before the court being heard.
9The mother relies on her Notice of Motion and supporting affidavit sworn May 11, 2021 and the affidavit of the maternal grandmother also sworn on May 11, 2021 and the mother’s reply affidavit sworn May 14, 2021. Mother’s counsel also filed a Factum.
10The father relies on his Notice of Motion and supporting affidavit sworn May 11, 2021 and the affidavit of his counsel’s assistant sworn May 14, 2021 that attached disclosure from the police.
11Both counsel in their Notice of Motions have requested relief for a long-term parenting plan that I am not prepared to grant based on the evidence presented before me.
12The father in his brief affidavit does not deny or even address the various incidents of violence or allegations of excessive use of marihuana and alcohol attributed to him except for one incident that occurred on March 21, 2021.
13Therefore it is not clear if he is agreeing to the allegations made by the mother or not addressing them as there was an agreement regarding his current parenting time or if he misunderstood his ability to serve and file a reply to the mother’s affidavit.
Issues to be addressed on the temporary motions
14The issues to be addressed are as follows:
- What parenting arrangements are in the child’s best interests?
- Which parent should have decision-making responsibility?
- What amount of child support is payable, what is the start date and what credit should the father receive?
- Is the mother a spouse as defined in section 29 of the Family Law Act? If the mother is a spouse, is she entitled to spousal support and if so, how much?
General applicable legal principles
15Counsel for the mother in his Factum relies on the previous section 24 of the Children's Law Reform Act [1]. No submissions were made if counsel was relying on the previous section 24 because this Application was commenced prior to the amendments or if this was simply an error.
16Unlike the amendments to the Divorce Act, section 24 of the Children's Law Reform Act, prior to the amendments, outlined a non-exhaustive list of factors that the court could consider in determining the best interests of a child. The amendments to section 24 have modernized the language and outlined non-exhaustive criteria to determine the best interests of a child.
17However, the fundamental principle has not changed that is, that any proceeding regarding children is determined with respect to the best interests of the particular child before the court.
18The amendments to the Children's Law Reform Act have also expanded the definition of family violence but this expanded understanding of family violence had already been applied in the case law.
19The amendments to the Children's Law Reform Act also specifically included the concept that a child should have as much contact with each parent as is consistent with the best interests of the child.
20However, I find that the best approach is to apply the new amendments. Based on the facts of this case, I find that whether based on the new amendments or the previous amendments the outcome would be the same.
21Section 24 of the Children's Law Reform Act section 24 (4), as amended, provides as follows:
Section 24 of the Children's Law Reform Act as amended, provides as follows:
Primary consideration (2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.
Factors (3) Factors related to the circumstances of a child include, (a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; (d) the history of care of the child; (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (g) any plans for the child’s care; (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child; (j) any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and (k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.
Factors relating to family violence (4) In considering the impact of any family violence under clause (3) (j), the court shall take into account, (a) the nature, seriousness and frequency of the family violence and when it occurred; (b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (d) the physical, emotional and psychological harm or risk of harm to the child; (e) any compromise to the safety of the child or other family member; (f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and (h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.
Past conduct (5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. 2020, c. 25, Sched. 1, s. 6.
Allocation of parenting time (6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. 2020, c. 25, Sched. 1, s. 6.
22I have considered the case law and the factors set out in section 24, as amended, of the Children's Law Reform Act. Despite the change in the legislation, the test for a parenting order or contact order as outlined in previous case law with respect to custody and access remains relevant.
23The challenge on a temporary motion is to make such an important decision based on affidavit materials that have not been tested by cross-examination and on an incomplete record. A temporary order can have and frequently does have long term consequences.
What Parenting arrangements are in the child’s best interests?
24Despite the allegations outlined in the mother’s affidavit, she agreed that the father should commence unsupervised parenting time on Wednesdays from 5:00 p.m. to 7:00 p.m. and Saturdays from 2:00 p.m. to 6:00 p.m.
25However, the background regarding the father’s attempts to establish a relationship with the child and the mother’s actions and her concerns are relevant.
26The father commenced this Application as he alleged that he was being denied contact with his child.
27The mother does not deny that prior to the commencement of the court proceedings, the father has only had 3 brief visits with the child in her presence. But the mother blames the father for not requesting parenting time.
28I find that the mother has attempted to delay and interfere with the father’s ability to establish a relationship with the child and has placed many obstacles in his way.
29Prior to commencing this Application, the father’s counsel wrote to the mother to arrange a parenting schedule.
30On November 25, 2019 counsel for the father sent the mother a letter by registered mail and courier requesting amongst other relief that the father be permitted to see his son. He conceded that the child would remain in the mother’s primary residence. He also enclosed 2 child support cheques for the months of November and December in the amount of $536 based on his income of $58,000. He stated that he intended to send monthly cheques. The mother did not respond.
31The mother was then served with the Application on March 14, 2020 with a First Appearance court date of May 11, 2020. This date was adjourned due to the suspension of regular court operations due to the pandemic.
32Counsel for the father again wrote to the mother on May 12, 2020 by email and registered mail advising that the mother had not cashed the child support cheques sent by the father. Further, he again addressed the issue of the father seeing the child and indicated the father wanted to see the child on any terms and conditions that the mother wished. The mother again did not respond. The mother also did not file an Answer.
33On August 13, 2020 the father was given leave to serve his14B motion and affidavit of August 11, 2020 by email on the mother for an urgent motion. The mother was served with the 14B motion and again did not respond.
34The father requested an urgent motion so that he could have a regular schedule for parenting with the child as the mother ignored his attempts to arrange visits prior to retaining counsel and that the mother ignored all attempts by the father’s counsel since November 2019 to arrange such a schedule. Instead of an urgent motion an early case conference was scheduled and the mother was warned that if she did not participate an order could be made in her absence.
35At the case conference held on October 9, 2020 it was agreed that the father would begin to see the child in the presence of and at the home of the maternal aunt and uncle initially for 3 hours and then 4 hours on Sundays 3:00 p.m. to 6:00 p.m.
36Despite the agreement that the maternal aunt and uncle would be present during the father’s visit, the mother also remained for 3 of the 5 visits. The mother cancelled the other 2 visits.
37On one of the visits the maternal uncle called the police due to concerns about the visit taking place due to Covid as he wanted the father to obtain a Covid test prior to each visit. The visit eventually took place in the backyard.
38The mother also alleged that the father was recording the visit and that on one occasion he moved to a room where he could not be observed. She also alleged that he refused to follow Covid protocols. The father denied these allegations.
39A further order was made that the father’s access continue in accordance with the order of October 9th, 2020, that the father follow all Covid recommendations and any rules as requested by the maternal aunt and uncle. It was further agreed that the maternal great grandmother could also supervise the visits if the maternal aunt and uncle were not available to avoid further cancellations of the father’s visits.
40There continued to be issues regarding the father’s access. At a further case conference on January 7, 2021 an order was made that the father arrange for supervised access through a private supervised access facility for January and February and that the mother fully co-operate with the process. The father was ordered to pay the initial cost on a without prejudice basis.
41The father retained Brayden Supervised Access Services (“Brayden”). However, due to Covid-19, Brayden facilities were closed so visits could not take place at Brayden’s facilities. The mother then insisted that the visits occur at the maternal aunt and uncle’s home and not at the father’s home.
42Despite the father providing a copy of his lease and photos of his accommodations, the mother would not agree to Brayden supervising the father’s access in his own home.
43As there was no agreement, a date was set for a motion for April 12, 2021.
44The motion was settled with the mother agreeing that the father have 2 additional visits supervised by Brayden at his home in addition to his regular supervised access at the maternal aunt and uncle’s home.
45At the case conference held on April 12, 2021, as there was no agreement to the father’s access becoming unsupervised and no agreement regarding the issue of the mother’s entitlement to spousal support, a date was set for the motions.
46The parties also agreed to obtain disclosure from the Children's Aid Society of Toronto and the police.
47The reports from Brayden were filed and although the father initially required some assistance and suggestions regarding caring for the child, there were no concerns. The father followed all Covid requirements.
48This is in stark contrast with the numerous allegations made by the mother and the maternal aunt and uncle when they supervised the father’s parenting time.
49In the mother’s affidavit she outlines in considerable detail every visit supervised by the aunt and uncle regarding their various concerns regarding the father. The mother does not comment about the Brayden reports except to indicate they happened and the reports were attached as exhibits.
50I put no weight on the concerns expressed by the mother, the maternal grandmother or the maternal aunt and uncle regarding the quality of the father’s parenting and prefer the unbiased reports of the Brayden supervisors.
51The most concerning allegations made by the mother and maternal aunt and uncle relate to the incident of March 21, 2021 when the father was exercising a visit at the home of the maternal aunt and uncle. The mother and the maternal aunt and uncle alleged that the father gave the child CBD oil or a marijuana edible during the visit. The police were called, the child was taken to the hospital and the Children's Aid Society of Toronto became involved.
52The police and the Children's Aid Society of Toronto both concluded that the father did not give the child a marihuana edible.
53The society had calls from the paramedics, a nurse from the Trillium hospital and the police. The mother reported to them all and to the society worker that during a visit supervised by the mother and the maternal uncle and aunt that the child had a tantrum, hit his head and that the father gave the child CBD oil or a marihuana edible.
54After questioning, the society worker confirmed that in fact, none of the relatives had seen this. The mother then reported that she “suspected” the father did this because he smokes marihuana and eats marihuana edibles. This was even though the mother reported that father had not used marihuana during any previous visits.
55The father was interviewed by a society worker and denied the allegations. He stated that when he was younger, he had experimented with marijuana but does not presently smoke.
56The Children's Aid Society of Toronto closed their file as there was no indication that the father had placed the child at risk.
57The police records that were filed indicate that the police were called to the home as the maternal uncle wanted the father to leave an hour before his supervised visits was over. It was during this investigation that the mother then alleged that the father had assaulted the child on February 1, 2021.
58The police report states as follows:
While speaking to Katerina she alleged that on February 1, 2021 Alvaro assaulted Vasilis by pulling his hair, pinching him and grabbing his wrist. Katerina then provided a video of this incident. Police reviewed the video several times. At no time is Alvaro viewed pulling the child’s hair, pinching, grabbing, assaulting or being inappropriate with the child. Upon telling Katerina this she then alleged that “MAYBE” Alvaro fed their son marihuana edibles today because her son seems lethargic. She did not see Alvaro feed or give Vasilis anything, nor did any of the other parties present see any activity of feeding the child.
There are no reasonable grounds to believe the child was assaulted or fed any drugs. The allegations were contrived out of thin air and seemed to have been made up as the investigation went on. All allegations that have been presented are unsubstantiated and appear to be a ploy in order to garner favour in the custody dispute.
Alvaro’s court ordered visitation was interrupted unnecessarily. Alvaro presented as cooperative and composed during the course of the investigation given the circumstances. He appears to be following the court orders as specified.
The child was brought to the hospital via ambulance for precautionary measures given that he had banged his head. There were no apparent injuries.
On Monday March 22, 2021 Katerina Naoum attended SUV to provide further information. Katerina advised that she had a video recording of the incident from the previous day involving her son, Vasilis Naoum and his father Alvaro Moya.
SVU investigators reviewed the video which showed Vasilis in a toy car and Alvaro kneeling beside him. Alvaro is using baby wipes and appears to be cleaning Vasilis with them. Vasilis is heard crying. Some family members are also in the backyard and a verbal disagreement can be heard in relation to the child and the father’s visit. The video provides no evidence of any assaults or abusive behaviour.
59I outline this incident in its totality due to my concerns about the lengths the mother will go to discredit the father. As a result of these unfounded allegations there was a police and Children's Aid Society of Toronto investigation and the child was also taken to the hospital.
60The mother also continues to allege that the father has long-standing anger management issues and require counselling and that he consumes marihuana in excess on a regular basis and consumes alcohol to excess.
61The mother’s allegations regarding the March 21st incident and an alleged incident on February 1, 2021 also raise serious issues regarding the mother’s credibility with respect to her prior allegations of domestic violence against the father and his use of marihuana and alcohol.
62The father has completed a parenting course and has provided the results of two toxicologist reports that are negative for alcohol or drugs.
63The mother has now agreed that at present the father is able to exercise unsupervised parenting time on Wednesdays from 5:00 p.m. to 7:00 p.m. and on Saturdays from 2:00 p.m. to 6:00 p.m. But this was only after several attendances for case conferences and motion materials needing to be drafted.
64In the mother’s proposal for increased parenting time, the father’s time would expand by only one hour on Wednesdays and Saturdays when the child turned 3 years old and overnight visits would not commence until the child was 5 years old.
65After a period of unsupervised access there is no reason that the father’s parenting time should not expand to overnights much sooner than the mother’s proposal.
66After the motion was argued, I endorsed that on consent the father would immediately commence unsupervised access on Wednesday from 5:00 to 7:00 p.m. and Saturdays from 2:00 p.m. to 6:00 p.m.
67Accordingly, at this time I am only prepared to make the order that is agreed upon and not accede to the slow expansion of parenting time that the mother has proposed.
Which parent should have decision-making responsibility?
68I agree with the submissions of the mother’s counsel that since the separation the mother has been the parent to make all the decisions with respect to the child. The mother deposes as to several concerning incidents at the time of the birth of the child and shortly thereafter that raise concerns about the father’s controlling behaviour and would support the assertion that the parties are unable to jointly parent.
69However, that must be juxtaposed against concerns about the mother’s credibility and the fact that she may use an order for sole decision-making to further distance the father from being involves in their son’s upbringing.
70The mother does not depose that she has kept the father advised of or sought his input on any decisions she has made.
71The mother does not indicate in her affidavit what decisions need to be made in the short term or what future decisions she and the father may have different views about.
72The father appears to agree that the mother can have sole decision-making authority until the child is 4 years old if the parties then have joint parenting and joint decision-making authority. This is something the mother is not agreeing to nor do I find that it is an order that can be made on this motion.
73The issue of whether the parties will be able to jointly make decisions in the future in unknown. These parties do not have a history of joint decision-making as their relationship was so brief and the father was deprived of establishing a relationship until he commenced this litigation.
74If it were not for my concern that the mother will use an order of sole decision-making to estrange the father from the child, I would order that the mother be granted the ability to make decisions after consulting with the father and considering his input.
75However, given the mother’s pattern of interfering with the father’s regular parenting time, her unfounded allegations against the father and the lack of any evidence as to what decisions will need to be made in the short term I am not prepared to give the mother that authority at this time.
76Each parent should be permitted to make day to day decisions when the child is in their respective care. The child will continue to receive medical care from the doctor chosen by the mother.
77The evidence was not clear as to what information, if any, the mother provided to the father about the professionals involved with the child.
78Given the young age of the child, I suspect that the only decision that has been made is regarding the choice of a doctor and medical care. The mother should immediately provide the father with information about the child’s doctor so the father can contact the doctor and obtain updated information about the child’s medical condition. The mother should also inform the father of any other professional or non- family member caregivers involved with the child and their contact information.
79Accordingly, there will be an order that the mother provide this information. The father should then follow up to familiarise himself with up to date information about the child.
What amount of child support is payable, what is the start date and what credit should the father receive?
80The father through his counsel sent to the mother cheques for child support as of November 2019.
81The mother claims child support as of September 1st, 2019 but as the parties lived together until September 17th when the mother left the home with the child, child support should only commence as of that date.
82The mother does not dispute that she has received some child support from the father. However, 3 cheques were either not cashed or not negotiable.
83The father’s income for 2019 was $61,401 and his child support should have been $507 per month.
84The father’s income for 2020 was $75,661.74 and his child support obligation should have been $706 per month.
85Based on the father’s income, his child support obligation from September 2019 to May 1, 2021 should have been $13,712.
86According to the mother, she cashed cheques totalling $7,228.66. The total amount of child support owing based on the father’s income would be $14,282. Therefore, the outstanding arrears owing would be $7,053.34 as of May 1, 2021. I would reduce this amount by $253, for only half of September 2019 is owing. Therefore, the father owes arrears of $6,800.34.
87The temporary order of November 19, 2020 provided that the father pay $601 per month based on his income of $64,615 as of December 1, 2020.
88As of June 1, 2021, it was agreed that the father would pay child support of $706 per month (the endorsement incorrectly states $705 per month).
89As the order on November 19, 2020 has not yet been submitted to the court to be issued and entered, I understand the father has paid the mother directly and not through the Family Responsibility Office. If this is correct then FRO will need to be notified of the amounts the father has paid so that their records are accurate.
90Although these calculations were clearly set out in the mother’s affidavit, they appear to have caught the father and his counsel off guard.
91Counsel for the father asked to be able to confirm the amounts the father paid and it was agreed that the father would review his bank records and advise within 2 weeks if he agreed with the mother’s calculations and if not, he was to provide proof to the court of the discrepancies.
92The mother seeks repayment of $500 per month of the arrears. The father’s counsel made no submissions on this issue.
93Based on the fact that the arrears would not be as high if the mother had cashed the cheques provided by the father, I am prepared to reduce the repayment to $250.00 per month so that the arrears will then be paid off within 2 years.
94With respect to the section 7 expenses, the mother confirms that there are no such expenses at the present time.
95However, for future expenses, the mother is agreeable to income being imputed to her at minimum wage of $29,640. Based on the father’s income of $75,661, he would pay 72% of any such expenses. However, if the mother is granted spousal support this percentage may change.
96The father should also have some input into these expenses. Accordingly the mother should be required to consult with the father before incurring such expenses and his consent should not be unreasonably withheld.
Is the mother a spouse and if so is she entitled to spousal support and if so in what amount ?
97It is the position of the father that the parties were not in a conjugal relationship or in the alternative that if the mother is entitled to support it should only be paid for one year.
98The mother on the other hand deposes that although brief the parties were in a committed relationship of some permanence and that she is entitled to spousal support on both a compensatory and needs basis and that the spousal support should be for at least 5 years.
99A claim for spousal support is governed by section 33 of the Family Law Act. The purposes of an order for support are outlined in section 33 (8) as follows:
Purposes of order for support of spouse (8) An order for the support of a spouse should, (a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse; (b) share the economic burden of child support equitably; (c) make fair provision to assist the spouse to become able to contribute to his or her own support; and (d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).
100However, in order to meet the test for entitlement for spousal support, the mother must first demonstrate that she is a “spouse” within the meaning of sections 29 and 1(1) of the Family Law Act.
101Section 29 defines “spouse” for support obligations as follows:
“spouse” means a spouse as defined in subsection 1(1), and in addition includes either of two persons who are not married to each other and have cohabited; (a) Continuously for a period of not less than three years, or (b) In a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children's Law Reform Act. (“conjoint”)
102Section 1(1) defines “cohabit” as:
“cohabit” means to live together in a conjugal relationship within or outside marriage.
103In the recent case of Climans v. Latner, 2020 ONCA 554 [2] the Ontario Court of Appeal upheld the analysis of Justice Sharon Shore in her trial decision Climans v. Latner, 2019 ONSC 1311 [3] regarding what constitutes “to live together in a conjugal relationship”.
104At paragraph 30 the Ontario Court of Appeal states as follows:
The trial judge [Justice Shore] referred to Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), which sets out a non-exhaustive list of criteria to be considered in determining whether a conjugal relationship exists: “shared shelter, sexual and personal behaviour, services, social activities, economic support, children as well as the social perception of the couple”: Campbell v. Szoke, 45 R.F.L. (5th) 261. She observed that in M. v. H., [1999] 2 S.C.R. 3, at paras. 59-60, the Supreme Court of Canada adopted and affirmed the Molodowich criteria and its contextual and flexible approach to determining whether a relationship is conjugal.
105Even if a relationship is brief or even if parties do not reside together courts have held that parties are spouses for the purposes of spousal support.
106In the Climans v. Latner case, noted above, the court found that the parties had a long term committed relationship, Mr. Latner paid for all of Ms Climans expenses and they were treated as a couple by friends and relatives. The court held that despite the parties having separate residences they were spouses for the purposes of spousal support.
107In the case of Johazi v. Bennett, 2008 ONCJ 805 [4] the court held that the mother was entitled to spousal support as the parties who were in a long term relationship of almost 2 years, lived together for 6 months, had an intention to form an economic unit, an intention to raise their child together and live together long term.
108In the case of DeSousa v. DeSousa [5] the court held that parties who had two children and then divorced but reconciled and lived together for only 6 months were in a relationship of some permanence and therefore the mother was a spouse for spousal support purposes. The court relied on the facts that both parties intended the relationship to be permanent, there was an economic component to the relationship, the mother has taken significant steps in changing her circumstances by giving up her residence, moving and selling assets and the parties discussed the possibility of marriage.
109In the case of Quesnel v. Erickson, 2012 ONSC 4335 [6] the court held that the parties were not in a relationship of some permanence though the parties were the parents of a child. The court held that spousal support obligations that arise on the termination of a relationship have a compensatory purpose of recognizing contributions to the relationship and the economic consequences of the relationship. The court recognized that even if the parties did not reside together, there could still be a finding of a relationship of some permanence. However, on the facts of the case, the court found there was no merger of the parties’ financial or household lives.
110In the case of Hollefriend v. Cole, 2017 ONSC 19 [7] the court held that the parties were not in a relationship of some permanence even though they were the parents of a child and lived together for about 3 months. The court applied the factors set out in the case of Molodowich v. Penttinen, noted above, and relied heavily on the fact that there was no economic interdependence in the relationship and applied the analysis in the Quesnel v. Erickson case. The court noted that the fact that the parties have a child and a parent pays child support does not elevate the parties’ relationship to one of “some permanence.”
111Applying the Molodowich criteria to the facts of this case, I find that the parties did not cohabit in a relationship of some permanence for the following reasons:
a) Shared shelter: The father deposed that when he found out the mother was pregnant, he invited her to move into his mother’s home where he was residing so she would get proper care. The parties then resided together from about mid-January 2019 until September 17, 2019 when the mother left the home with the child. Even during this brief period of cohabitation, the mother spent 2 days a week at her mother’s residence. There is no evidence that the parties considered this to be a permanent or long-term accommodation. b) Sexual and personal behaviour: The parties were clearly in a dating relationship when the mother became pregnant. This was an unplanned pregnancy. Based on the mother’s evidence, it was a troubled relationship with many allegations of family violence. Although I am troubled by the texts sent by the father after the separation speaking of their family and his love for the mother. For example, the father wrote, “This is our family. Our marriage was the day we decided to be together for each other and for Vasilis! We planed [sic] to be together and create a family and that’s [sic] what we did.” However, the mother also deposed that when the father sent these text messages he was emotionally upset and even threatened suicide. It is not clear on the evidence that there was a mutual commitment to the parties entering into a relationship of some permanence. In fact, the mother’s evidence is to the contrary that she began to withdraw from the relationship early on due to the father’s alleged abusive and controlling behaviour. c) Services: There is a little evidence regarding what domestic services the parties performed for each other. The mother deposes in her reply affidavit that she did all of the household tasks including cleaning, laundry and meal preparation. She deposes that by doing these tasks it permitted the father to focus on his employment outside the home. Given the short duration of the relationship and the fact that they resided in the paternal grandmother’s home, I do not find that even if the mother did these tasks that they would have supported the father in any meaningful way. d) Social activities: The father deposes that the parties kept their social lives separate. The mother has produced various photos of the parties together with friends and family. There is no evidence as to how often this occurred or when. The father travelled with the mother to Columbia so she could meet his family and they also spent time with his family in Toronto. However, there is no evidence presented as to how the parties presented themselves to their friends and family. At this stage, the photos show nothing more that a couple happy at the pending birth of their child, enjoying some time together, attending a few social events and vacationing together. In other words, there is no evidence at this stage that they were in anything but a dating relationship. e) Economic support: there is no evidence that the parties supported each other financially. Both had jobs during the time they resided together. There is no evidence that they comingled their financial resources, had joint bank accounts or joint credit cards or relied on each other for financial support. f) Children: the parties conceived a child. g) Societal perception: There is no evidence as to the perception of their relationship to their friends and family. There is no evidence that they informed their family and friends that they were in a committed relationship.
112As indicated in the case law, a contextual and flexible approach is to be used in the determination if the parties were in a relationship of some permanence.
113Although no one factor is predominate, the lack of any economic interdependence between the parties, is in my view fatal to the mother’s claims on this temporary motion. In all the cases reviewed, the court found an element of economic interdependency arising from the parties’ physical or financial contributions to their relationship.
114In this case, the mother and father were in a dating relationship, there is not even evidence if this was an exclusive relationship, and then they had a child. The father has paid child support thereby meeting his obligation to support the child but that does not automatically equate with an obligation to support the mother.
115The mother’s plan was to return to work after her maternity leave. It is only as a result of the pandemic that she was unable to return to her employment or find childcare. These events do not arise out of the relationship between the parties or create a spousal support obligation.
116At this stage of the litigation, I am unable to conclude on the evidence presented that the parties were in a relationship of some permanence as defined in section 29 of the Family Law Act. Accordingly, no further analysis is needed as to the mother’s entitlement or quantum of support.
117The mother’s claim for temporary spousal support is dismissed.
Order
118There will be a temporary order as follows:
- The child Vasilis Moya Naoum born […], 2019 shall reside in the primary care of the Respondent mother.
- The Applicant father shall have parenting time every Wednesday from 5:00 p.m. to 7:00 p.m. and every Saturday from 2:00 p.m. to 6:00 p.m.
- The Applicant father shall be responsible for all pick ups and drop offs. The Applicant father shall remain in his car and the Respondent mother or her designate shall deliver the child to the Applicant father and pick up the child from him.
- Each party shall be permitted to make day to day decisions regarding the child when he is in their respective care.
- The child shall continue to receive medical care from the doctor selected by the Respondent mother.
- Pending further court order, in the event of an urgent issue the parties will jointly make any major decision about the child.
- The Respondent mother shall immediately advise the Applicant father in writing of the name and contact information of the child’s doctor and any other professional or non-family caregiver involved with the child presently or as arranged in the future.
- The Applicant father shall be at liberty to contact and obtain information about the child from any professional or non-family caregiver involved with the child.
- Based on the Applicant father’s 2020 income of $75,661.74 and in accordance with the Child Support Guidelines for one child, the Applicant father shall pay child support of $706.00 per month as of June 1, 2021.
- The Applicant father owes child support arrears from September 17, 2019 to May 1, 2021 in the amount of $6,800.34 which shall be repaid at the rate of $250.00 per month as of July 1, 2021 unless the parties agree otherwise.
- The Respondent mother shall advise the Family Responsibility Office of any direct payments that she has received in order that their records may properly reflect the child support ordered.
- Support Deduction Order
119If either party seeks their costs, they shall serve and file their written costs submissions within 2 weeks. The other party will have a further 2 weeks to respond. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. Copies of any case law are not be to filed but should be simply referred to in the cost submissions. Cost submissions are to be emailed to the Family Law Portal or emailed to the court’s general email address.
Released: June 9, 2021 Signed: Justice Roselyn Zisman
Footnotes
1On March 1, 2021, amendments came into force to the CLRA in the Moving Ontario Family Law Forward Act, 2020. The amendments mirrored in most respects the amendments to the Divorce Act.
32019 ONSC 1311 appeal allowed on other grounds
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