ONTARIO COURT OF JUSTICE
BETWEEN:
M.K.
Applicant/mother
— AND —
K.M.
Respondent/father
Before Justice Lise S. Parent
Trial Heard on August 15, 16, 17, 18, 19 and 22, 2022
Reasons for Judgment released on September 20, 2022
Mr. M. Bilanski counsel for the applicant
Mr. M. Tufman counsel for the respondent
OVERVIEW:
1The parties are the parents of one child, K.M., whom I will refer to as "the child," born October X, XXXX.
2The Applicant, M.K., whom I will refer to as "the mother" is a Polish citizen. The Respondent, K.M, whom I will refer to as "the father" was born in Poland, immigrated to Canada at the age of thirteen and a half (13 1/2) and is a Canadian citizen.
3It is not disputed that the parties met through social media in 2019. At the time of their meeting, the mother was working in Canada, by virtue of a work visa, at a cannabis farm located approximately ninety (90) minutes outside of Toronto. The father was self-employed as a stone mason and lived in Mississauga. By July of that year, the parties began residing together in the father's home. Both parties testified that the conception of their child was planned and one that they both agreed to.
4It is not disputed that the parties initially separated on July 8, 2021, reconciled in early December 2021, and finally separated on December 31, 2021.
5It is not disputed that the father has remained, since separation, in the home the parties shared and that the mother and child, after initially residing with her sister and her family in their home, have been residing in a women's shelter since June 2022.
6The mother started these proceedings by the filing of her Application on November 5, 2021. The father filed his Answer on March 28, 2022.
7While the parties' pleadings claim orders for sole decision-making, primary care, a specified order regarding parenting for the other parent and support, the mother's most important claim, and the issue that consumed most of the proceedings and this six (6) day trial, is her request that she and the child be permitted to relocate to Poland. This is opposed by the father.
8The following witnesses testified:
(a) The mother;
(b) A.K., the mother's sister;
(c) D.M., the mother's brother-in law;
(d) The father;
(e) M.B., a lawyer practicing in Poland;
(f) B.M., the father's sister; and
(g) E.A., the father's brother-in-law.
9On consent, A.K. and M.B. testified virtually from Poland.
10On consent, the parties submitted Document Briefs which were entered as Exhibits to the trial.
ISSUES:
11The outstanding issues to be determined are these:
(a) Should the mother and child be permitted to relocate to Stare Guty, Poland?;
(b) Depending on the answer to (a) what form of Parenting Order is in the child's best interests and how should decision-making responsibility be allocated?;
(c) What child support order is appropriate, and should the order be retroactive to the parties’ date of separation?; and
(d) Is the mother entitled to spousal support from the father and, if so, what is the appropriate amount, its duration and should the order be retroactive to the parties' date of separation?
BACKGROUND OF COURT PROCEEDINGS:
12The following procedural events and court Orders are relevant:
(a) The mother started her Application on November 5, 2021;
(b) On January 27, 2022, Sullivan J. denied a 14B motion filed by the mother seeking an order permitting her to schedule a motion on the issue of relocation prior to a case conference. The order did "fast track" the trial of this proceeding given the relocation request;
(c) On March 15, 2022, Sullivan J. granted a 14B motion permitting the father to file his pleadings before April 10, 2022;
(d) The father filed his Answer and financial statement on March 28, 2022;
(e) The mother filed a Reply on March 31, 2022;
(f) On April 26, 2022, Sullivan J. granted a temporary order:
(i) permitting both parents to have the same right to communicate directly with any service providers involved with the child;
(ii) addressing communication during any emergency involving the child while in their care;
(iii) prohibiting either parent or any person from removing the child from Ontario; and
(iv) on a without prejudice basis, designating the child's primary residence with her mother.
(g) The April 26, 2022 endorsement also noted that the father was paying child support to the mother in the amount of $282.00 per month based on his declared income of $33,000.00 per year. No order was granted on the issue of child support;
(h) On June 9, 2022, Sullivan J. granted leave to the father to bring a temporary motion for parenting time. This motion was scheduled to proceed on July 15, 2022;
(i) On July 15, 2022, the endorsement by Sullivan J. indicates as follows "the parties settled mostly the Temp motion issue of parenting time between father [name omitted] and the parties’ [child - name omitted] …I did provide a decision re weekday access after hearing that father has the ability to make himself available";
(j) On July 27, 2022, the endorsement of Clay J. traversed this matter to the trial sittings for five-days beginning August 15, 2021; and
(k) The matter proceeded to trial on August 15 to 19, and 22, 2022, inclusive.
SUMMARY OF THE EVIDENCE OF THE MOTHER AND FATHER AS IT RELATES TO THE ISSUES:
13The mother testified in Polish and was assisted by an interpreter throughout the trial. The father testified in English, with the assistance of a Polish interpreter, on an if requested basis.
Travels to Canada
14The mother's first visit to Canada was in 2015. The reason for the visit was to attend the baptism of her niece, the daughter of her sister, as she was the godmother. The mother obtained a 6-month tourist visa. She testified that she spent time visiting her sister and her family, working at a cannabis farm for cash and sightseeing with her former boyfriend who had joined her in Canada from Poland.
15The mother's second visit to Canada was in the Spring of 2016, once again under a tourist visa. She testified that she came to visit her sister and her family as her prior relationship had ended and she had no obligations in Poland. She testified that, upon her arrival, she also returned to work at the cannabis farm for approximately one and one-half (1.5) months before returning to Poland.
16The mother's third visit to Canada was in the Fall of 2017, once again under a tourist visa. She testified that the primary reasons for this visit was to visit her sister and her family. However, she testified that she also returned to work on the cannabis farm where she was again paid in cash.
17The mother's fourth visit to Canada was in 2018. This visit was again to visit her sister and her family. However, this visit allowed the mother to work legally as she had obtained a one-year work visa. She testified that she returned to work at the cannabis farm. She stated that the work visa permitted her to travel back and forth between Poland and Canada without being concerned about her ability to re-enter Canada. In April 2019, she testified that she went to Poland for two (2) weeks to celebrate Easter with her family and then returned to Canada.
18The father testified that he was born in Poland and that he came to Canada when he was thirteen and half years (13 ½) years old. He testified that he became a Canadian citizen approximately five (5) or six (6) years after arriving in Canada.
Relationship History
19It was during the mother's fourth trip to Canada that the parties met on a social media application in 2019. On July 12, 2019, the father suggested to the mother that they begin living together.
20The mother testified that she wanted to be with the father, but this was not an easy decision as it meant that she would have to give up her employment on the cannabis farm and therefore, her work visa. She testified that the father told her not to worry about losing her job as she could find another, and that he was financially secure to support them both.
21The father testified that he has owned his own home since 1999. The home was initially purchased by him and his then fiancé, however, following their separation, he purchased her interest in 2019. He testified that the home has been renovated inside and out and that he did this work himself with the help of family and friends.
22Both parties testified that their relationship was very good and wonderful at the beginning. They both testified that they fell in love quickly and wanted to be together. They both testified that the pregnancy of their child was planned and welcomed by them.
23The parties both testified, however, that they did quarrel during their relationship and that these arguments progressed in frequency and intensity over time.
24The mother stated that these quarrels were due to the father consuming alcohol, not large quantities but rather, alone in the garage which had an impact on his behaviour such that he became jealous and controlling of her, especially regarding her contact with her family. The mother testified that more disagreements developed over time. As such, their relationship became a routine and the father's drinking became more of a problem.
25The mother relies on a letter dated March 14, 2022 from the Peel Children's Aid Society, entered at Tab 2 of Exhibit 1- Applicant's Book of Documents, as corroborating her evidence regarding the father' consumption of alcohol as it states that this concern has been verified.
26The father testified that he had seen the letter from the child protection agency referred to by the mother. He states that the representative from the Peel Children's Aid Society never raise alcohol consumption with him. The father denies that the statement regarding alcohol consumption by a caregiver in the letter refers to him.
27Neither party called a representative from the Peel's Children's Aid Society as a witness.
28The mother testified that the father's parents came from Poland for a visit during the 2019 Christmas holidays. She testified that only after their arrival did she learn that their visit was for six (6) months and that this had been their routine for several years.
29The mother stated that at the beginning, she had a good relationship with her in-laws as she did not know anyone in Mississauga and therefore would spend a lot of time in their company. However, she testified that the relationship began to deteriorate as her in-laws began to interfere with her relationship with the father and in her view, they tried to turn him against her.
30The father testified that at the beginning of the parties' relationship, everything was gorgeous and that they fell in love very fast. The father acknowledges that he was the one who offered to the mother to come and live with him.
31The father testified that the quarrels involved both of them being angry, saying bad words and calling each other bad names. He stated that the quarrels were largely over the mother smoking while breastfeeding their child.
32Each party denies the allegations raised by the other.
33The father denies that he is an alcoholic. He states that he cannot afford to drink as the mother claims given his obligations to his business and his home. The father acknowledges drinking on occasion such as during holidays and having one beer after his workday is completed.
34The mother denies that she smoked to the extent claimed by the father. She testified that she quit smoking after finding out she was pregnant, did not smoke during her pregnancy, and only had a couple of cigarettes in December 2021 following the death of her father.
35Pictures of partially smoked cigarettes hidden in a napkin/tissue under furniture were introduced at trial on behalf of the father in Exhibit #2 - Photographic Disclosure of the Respondent. The mother denied that she was the person responsible for these items. She testified that the father had manufactured the pictures to support his evidence.
Financial Arrangements
36The mother testified that prior to her relationship with the father, she was financially independent. Her travels to Canada were paid for by herself. Prior to meeting the father, she testified that she made enough money working on the cannabis farm that she did not have to work when returning to Poland.
37During the parties' relationship, the mother stated that the father would pay for all expenses associated with the home they shared while she would pay for her own expenses.
38Following the parties first separation in July 2021, the mother testified that she relied on her sister and brother-in-law financially. She stated that she never received any support, whether in cash or otherwise, from the father. She did indicate that the father did take her grocery shopping on one occasion but stated this was because he refused to give her cash.
39The mother testified that in addition to not assisting her financially, the father, at their initial separation in July 2021, refused to allow her to take the child's stroller and OHIP card.
40The mother acknowledges emptying her bank account on July 13, 2021 and leaving with the child to Wasaga Beach without the knowledge of the father. She testified that she did not tell the father as he had kicked her out of the home.
41The mother testified that since February 2022, the father is paying child support in accordance with the court order. She stated, however, that she still relies on her sister and brother-in-law for help financially.
42The father testified that he began to pay child support, in the amount of $282.00 per month, in February 2022. He acknowledges that he did not pay any child support from July 8, 2021, to January 31, 2022. It is not disputed that the father has never paid any spousal support. The father testified that it is up to the court to determine if he should pay more support.
43The father testified that on July 16, 2022, he opened an Education Savings Plan for his child. He testified that this topic had been discussed by the parties when together, but he did not inform the mother at the time the account was opened as he was not allowed to communicate with her.
Immigration
44The mother testified that when she was in Poland, she missed Canada and vice versa. She stated that she never thought about relocating to Canada permanently until she met the father. Her plan when this happened was to spend the rest of her life with him, no matter where he was. She testified that what was important to her if she were to stay in Canada, was the ability to travel to Poland because of her family. She acknowledged that the plan was that Canada was to be her home.
45It is not disputed that the parties began completing documents in support of the father sponsoring the mother, as his spouse, for permanent residency in Canada in the Fall of 2019. The mother testified that this application was abandoned as she did not want the father to think that she was with him simply for immigration purposes. She testified that she was with the father because she truly loved him.
46The mother testified that, as problems developed in their relationship, she once again raised the immigration application with the father. She stated that the father accused her of throwing away the paperwork.
47The mother testified that when she was pregnant, she once again spoke to the father about her status. It is during this conversation that the parties discussed hiring an immigration consultant to assist them with the sponsorship application.
48The mother testified that she gave a retainer to the consultant in August 2020 and completed the paperwork that was required. The mother testified that the father refused to complete his paperwork. The mother testified that the father told her that the paperwork was the responsibility of the "lawyer" and not him.
49The mother testified that she asked the father on many occasions if he would sponsor her. She testified that the father always had excuses when she raised the issue of sponsorship. She testified that the father:
said that he wanted to sponsor her, but that he was not able to as she threw out the papers;
that he would sign all the documents if she paid for all the costs associated with the application and she would sign a "pre-nup"; and
that the responsibility of the sponsorship application was up to the "immigration lawyer" and the mother's brother-in-law.
50The mother testified that during their reconciliation in December 2021, she raised the issue of her status in Canada once again with the father. She testified during this discussion the father showed her the sponsorship documents he had previously accused her of throwing out.
51The mother testified that she now finds herself in Canada, without permanent status or rights, she is not able to work, and she has nowhere to live. She acknowledged that she could begin an immigration application on humanitarian and compassionate grounds; however, she has been told that the process is difficult and could take several years.
52The mother acknowledged that she applied to extend her visa in Canada, given the birth of her child and that she received a six-month extension. She testified that she is aware that a further extension is possible if she secured employment. The mother testified that she was not able to work given that she has a child to care for. She stated that she should not be required to leave her child with the paternal family if she was working as she is feeling hurt that the father promised to take care of her, and he has not done so.
53The father testified that the mother could return to work on the cannabis farm as she has a history of working there "under the table” and they are happy with her work. He testified that his family could care for the child while the mother is working.
Relocation to Poland
54The mother testified that a return to her home village of Stare Guty, Poland will mean an easier and better life for her and her child. She testified that she and her child would have a home, she would not have a problem securing employment as she has a job offer in hand, her job would allow her to bring her child to work, and there are family connections to provide support as her entire family, except her sister and her family, are in Poland.
55In his testimony, the father acknowledged that he had never visited the village of Stare Guty. However, he stated that he grew up in a small village in the Highlands Region in the south of Poland and came to Canada for a better life. The father stated that he wants his child to have this better life as well.
Employment History
56The mother testified as to her work history in Poland. She stated that she worked in a pre-school as an educator for several years, as a manager in the agrotourism industry for eighteen (18) months and in retail for six (6) months.
57Following her leaving her employment at the cannabis farm in July 2019 to begin residing with the father, the mother testified that she began working at a Polish restaurant in November 2019. She stated that she enjoyed this work as she likes to cook. Her evidence was that she left this employment at the request of the father as the position required her to work weekends, and the father wished her to be with him during this time, as these were his days off from work.
58The mother testified that she then began working at a Polish store, a couple of weeks following her leaving her employment with the restaurant. She testified that she left this employment due to the father kicking her out of his house following an argument about her helping her sister.
59The mother testified that these were her only attempts at employment. She stated that she did not pursue any other positions due to being pregnant; that she would have to disclose her pregnancy to any potential employer; given her absence of status in Canada, she could only obtain physical labour positions thereby making her concerned about the impact on her pregnancy; and the possible exposure to COVID during her pregnancy.
60The mother testified that it is difficult for her to secure any employment as she has a child to care for and does not speak English. The father testified that he is prepared to pay for English lessons for the mother.
61The father testified that he is self-employed as a stone mason. He stated that his current home was bought as it was his dream to create a place for his future wife and children. He testified that he lives in his home with his parents. Similar evidence of the father's business and his home was also provided by the mother. The mother testified, however, that she believes the father's home to be worth 1.5 million dollars.
62Both parties in their evidence testified how the father owns two vehicles and a piece of large equipment machinery for his business. The father testified that he feels lucky to own his 2015 Range Rover vehicle and that it is financed.
63The mother testified that the father also owns a house and property in Poland.
64The mother testified that she does not know the father's annual income, that he never told her, and they never discussed this topic.
65The father's evidence is that he makes "a good living" which he indicated is now around $50,000.00 per year. The father agreed in his evidence that he has earned between $30,000.00 and $50,000.00 per year for the past five (5) years. He than agreed that his average income for the past five (5) years was $50,000.00. The father than agreed that he perhaps earned $60,000.00 some years.
66The father acknowledged that his financial statements show his annual expenses to be $119,000.00 per year, and his proposed budget increases these expenses to $129,000.00 per year. The father testified that he spends this money, however, he uses his savings, his personal line of credit, and his business account to meet these expenses. When further questioned on this issue, the father then testified that he has also borrowed money from his parents to meet his expenses.
67The father acknowledged that his financial statement shows savings in the amount of $112,000.00.
68The mother testified that the father has a safe in his home where he keeps, among other things, the cash he receives as payment for jobs. The father admitted that he has a safe in his home, however, denied that there is cash stored in it. The father testified that he works for one large developer and is paid by cheque.
69The father testified that he works Monday to Friday from 5:30 or 6:00 a.m. to 7:00 or 8:00 p.m. daily. He stated, however, that he has been able to reduce his work hours on Wednesday for his parenting time.
70The father testified that the mother could return to work on the cannabis farm as she has a history of working there "under the table" and they liked her work as she has been re-hired several times.
Allegations of Family Violence
71The mother testified that the first incident of violence occurred during her third (3rd) month of pregnancy.
72The mother testified that she went to the doctor following which an argument between herself and the father ensued. She stated that during the argument the father accused her of throwing away the sponsorship documents resulting in him having to pay for her medical visit given that she had no medical coverage. The mother testified that no physical violence occurred at this time, however, the father was emotionally abusive towards her as he was insulting her and calling her names.
73Later that evening around 10:00 p.m., the mother stated that she was out on the backyard deck. The father came from the garage and told her to go inside the house. When she replied no, her father-in-law came out on the deck and repeated the father's request to go inside. The mother described how when she refused, her father-in-law grabbed her and pulled her into the house.
74Once inside the house in the kitchen area, the mother testified that the father began pulling on her and insulting her. She testified that her mother-in-law seemed to be encouraging the father's behaviour. The mother described how the father went upstairs to call her sister to come and take her away.
75The mother testified that she wanted to leave the kitchen when the father was upstairs, but her passage was blocked by her father-in-law. She described how, in an attempt to get away, she jumped up on the kitchen island, but her father-in-law grabbed her arms, called her offensive names, and pulled her off the island. The mother stated that she was crying and worried about her baby. She testified that she told her in-laws that if anything happened to her baby, it would be their fault.
76The mother continued by describing that the father returned to the kitchen, stood with his father to block her, and called her names. She described that she was so desperate that she threw a water bottle in front of them. It was following this action the mother testified that that father told his father to let her pass. The mother testified that as she went to leave the house and while walking past her mother-in-law, was told by her mother-in-law to take off the sweatshirt she was wearing as if belonged to her.
77The mother testified that by this time, the father had returned to the garage. She went to ask him to drive her to her sister's home. She testified that father's response was to make a vulgar sign with his finger and slam the door on her.
78The mother testified that the second incident of violence occurred when she was eight (8) months pregnant. She testified that the parties were arguing as she had gone to her sister's home. The mother stated that the father had been drinking, and during the argument, raised his hand towards her, pulled her hair, squished her face, and took her cellphone from her.
79The mother testified that she ran upstairs, that the father followed, that he broke the door and continued to physically pull/push and insult her. She stated that she was fearful that she would fall down the stairs during this incident.
80The mother testified that she ran out of the house and onto the street. She was unsure what to do as she did not have her cellphone. She testified that she continued to walk the streets until 2:00 or 3:00 a.m. until she decided to return home.
81The mother testified that when she returned home, the house was dark, and the father was asleep. She described how she went to lie down in another room when at some point, the father came into the room and began once again to pull/push her. She stated that the father did return her cellphone, however, she noticed that the father had used it to text her sister
82The mother testified that she spent the next evening following this incident in the backyard of their home as she was afraid of what the father would do. She stated that the next day she went to stay with her sister.
83The mother testified that the third incident occurred in December 2021, during the period when the parties had reconciled. She stated that the father came into the bedroom very drunk one afternoon when she was napping with the child. She described that the father took her cellphone, started to push/pull her, hit her in the face and took their child away from her. The mother testified that she ran downstairs, opened the door, and yelled for help. She described how the father reacted by saying she had gone too far. She then took the child from the father, wrapped the child in a blanket and left the house.
84Once outside, the mother described how she tried to flag a car to stop to help her. She testified that she was able to stop a car and the person called the police. She got inside the car as she was fearful as the father was approaching the car. When the police arrived, they took her to the police station.
85The mother testified that following the first and second incidents, she still loved the father and was hopeful that their relationship would improve, especially since she was pregnant. She stated that after the third incident, she lost all hope since she knew the father would never change.
86The mother's testimony also included allegations of the father breaking into her social media applications, sharing contents of private conversations with her family, and taking/breaking her cellphone on numerous occasions throughout their relationship.
87The father denies the allegations against him and states that the mother had a pattern of losing her cellphones, which he replaced on numerous occasions throughout their relationship. He denies accessing the information on the mother’s cellphones without permission as he states that the mother asked him to incorporate passcodes into her cellphones on her behalf and as such, he denies the mother’s allegations.
88The father denies ever physically abusing the mother. The father denies that he controlled her behaviour in any way. He acknowledges that he is currently under a criminal undertaking not to come within three hundred (300) meters of the mother and that he cannot contact her.
Reconciliation
89The mother testified that she agreed to reconcile with the father as during the parenting visits following the July 2021 separation until December 2021, she began to have regrets that they were not spending time together as a family. She stated that the father, during this period, had health issues she was concerned about. The mother testified that the visits developed into the parties being able to speak with one another without conflict. During this period, the mother testified that the father also promised to go to counselling, stop drinking and said that she and their child were the most important for him.
90The mother testified that the first week of their reconciliation in December 2021 was really good. However, shortly thereafter the parties got in an argument about the fact that she did not have a house key to the home.
91The mother testified that on December 12, 2021, her father passed away in Poland. She stated that this was a difficult period for her given her father's passing and her inability to attend the funeral. She testified that during this period, that arguments between her and the father began to increase in frequency and the father resumed drinking.
Final Separation
92It is not disputed that the parties' final separation occurred on December 31, 2021.
Involvement with the child Pre-Separation
93It is not disputed that the parties' child was born on October XX, XXXX. Both parents acknowledge that they each love their child and their child loves them.
94The mother testified that the father did not play a large role in the upbringing of their child prior to their separation. She stated that he spent very little time with the child in spite of her frequent requests for him to do so.
95The mother described that when the father was home, she would ask him to care for/spend time with his child as she felt that this was important to establish a relationship between them. She testified that the father's response was that the child was too little, cried to much and that as the mother did not work, she should care for the child. The mother testified that the father never paid attention to their child, never changed a diaper, and only went for a walk when the child was 6 or 7 months old. She further stated that the father would always say that he would spend more time with their child when the child was older.
96The father denies that he never spent time with his child prior to the parties' separation. He referenced pictures in Exhibit #2 - Photographic Disclosure of the Respondent in support of his position.
Parenting Time Post-Separation
97The mother acknowledged going to Niagara Falls on 3 or 4 occasions with the father and the child following their final separation. She testified that the father did not tell her where they were going or that they were to stay overnight prior to leaving. She acknowledged being intimate with the father on one occasion. She testified that these outings were beneficial for their child.
98The mother acknowledged that the parties jointly celebrated their child's first birthday as a family in the father's home. She testified that the father prepared and decorated the house very well and the celebration went without incident but that she was sad that she did not have the means to arrange the celebrations.
99The mother acknowledged that Christmas Eve 2021 was also spent as a family with the paternal family members. She testified that the parties had reconciled at this time and that she was hesitant to go to the celebration at the father’s sister’s home given the anticipated attendance by the father's parents.
100The mother acknowledged that it was about a three (3) month delay before parenting time was discussed following the parties' last separation. She acknowledged requesting supervised parenting time, which the father rejected. She testified that her request was for the first two (2) or three (3) visits to be supervised as the father had never changed the child, put the child to sleep, or done anything for the child by himself.
101The father testified that he engages in a lot of activities with his child. He stated that the child is close to the paternal grandparents and the extended paternal family members. The father testified that his sister, B.M., stays with him on every occasion that his child is with him. He stated that his sister is like "a second mother" to his child.
102The father acknowledged that he did not have any problems seeing his child between the parties' first separation in July 2021, and the second separation in late December 2021.
103Both parties testified that the parenting time, in accordance with the temporary order granted July 15, 2021, has occurred without any concerns and has been consistently followed.
Parenting Plans
104Neither party submitted any written parenting plans for consideration.
105The mother testified that she remains open to the father having contact with their child, whether they be in Poland or in Canada.
106If permitted to relocate to Poland, the parenting time with the father would be whenever he could come to Poland to visit. She stated that he could take the child places in Poland, and that when the child got a little older, he could also take the child to Canada. The mother indicated that once the child began to attend school, this would have to be taken into consideration when planning visits.
107The mother testified that if her request to relocate to Poland is not granted, the parenting time could continue under the current arrangement that both parties testified as being every second Friday evening until Sunday evening and every Wednesday from 3:00 to 8:00 p.m.
108In either situation, the mother testified that she and the father could discuss the issue of in-person parenting time and arrive at an agreement as she is eager for their child to have contact with the father.
109The mother further testified that the father could have telephone and video calls with the child. She testified that making these arrangements could be done despite the six (6) hour time difference between Canada and Poland, if permitted to relocate, the father's work obligations and the current promise to appear conditions on the father that prevents him from having direct communication with the mother.
110The mother testified that she has the ability to apply for Polish citizenship for the child, without the loss of the child's Canadian citizenship.
111The mother acknowledged that the child has never met any of her family members who reside in Poland and has never been to Poland.
112The father testified that he believes that if the mother's relocation request is granted, he will never see his child. He testified that this belief is based on the fact that the mother did not permit him to see his child for four (4) months following their final separation on December 31, 2021.
113The father testified that he is prepared to pay for airline tickets for the mother to come from Poland and see their child in Canada four (4) times per year.
Other Parenting concerns
114The father, during his testimony, raised the issue that, during the mother's pregnancy, she did not raise with her doctor the fact that she has a cyst in her brain. He testified that this was discovered following the mother being in a car accident when she was around eighteen (18) years of age. The father testified that he was the parent who raised this issue with the medical professionals. He testified that, as a result of his involvement, the delivery of his child was by c-section.
115The father further raised the issue of the car accident to support his belief that the mother is fearful of driving a car. He testified that should the request of the mother to relocate to Poland be granted, she will not be willing to drive which in his view, is problematic given the isolation and limited transportation resources of the village of Stare Guty.
116The father did acknowledge in his testimony that during his relationship with the mother, he offered to purchase a car for her, that they shopped for a vehicle together without success and that she had driven his car during their relationship on at least one occasion.
117The mother testified that she did raise the issue of cyst with her doctor and as such, they were aware of her medical history. She stated that the delivery of the baby was planned with her involvement. She further testified that she is not afraid of operating or being in a car as a result of the accident.
SUMMARY OF EACH PARTY'S WITNESSES AS IT RELATES TO THE ISSUES:
On behalf of the mother
A.K.
118A.K. is the mother's sister. A.K. testified virtually and in Polish, which was simultaneously translated.
119A.K. resides in Stare Guty, Poland along with her partner and three children. A.K.’s eldest child is from her first marriage and is twenty (20) years old. Her other children are from her current relationship and are aged six (6) and one (1).
120A.K. was born in the village of Stare Guty and has been residing there continuously for the past ten (10) years. She has a university education in economy, a post-graduate degree in accounting and financial auditing and a certificate in management. In 2011, following their retirement, her parents gave her their farm.
121A.K. described that she runs an agricultural business, on 54 hectares of land, with a focus on plant production. She stated her monthly income from the farm as being 7,000 "zloty" (Polish currency) per month. In addition, she earns approximately 2,000 zloty from accounting work for other clients.
122A.K. stated that her home is not far from her parents' home. The plan for her sister is to live in their parents’ home, which offers separate accommodations, from the living area of her mother.
123A.K. testified that the mother has been offered a job at the local community centre, where she would work five (5) days per week for six (6) hours per day. She testified that the mother would have access to a fully equipped pottery workshop at her residence so that she can earn additional income given her artistic talents in this area. The income from the employment would be approximately 2,000 zloty per month. In addition, the mother would receive support from the government of approximately 500 zloty per month.
124A.K. testified that her partner is the village elder, who, as the elected representative of the village, was the person who offered the community centre employment to her sister.
125A.K. testified that her village, as of a couple of years ago, has a population of approximately 200 people. She believes, however, that the population is greater now as people are building houses. The area is dedicated to farming and is filled with wooded areas, lakes, rivers, national parks and is recognized as the green lands of Poland. She testified that it is a great tourist area however conceded this is mostly during the summer months.
126A.K. testified that, outside of Stare Guty but within an eight (8) kilometers area from the village, there are horse farms, sailing clubs, theatres, swimming facilities, dance/ballet clubs, elementary schools, one of which offers musical training to sits students, and a high school. She stated that the area has many opportunities for the child to learn and develop.
127A.K. stated that there are no stores in her village, however, there are municipal services such as garbage and recycling collection. She testified that in addition to the Agritourism industry, there are two (2) construction companies, one (1) waste management company, and one (1) stone masonry company in the village.
128A.K. testified that the mother and her child would have a guaranteed good life in Poland as the mother will have housing, employment, and family support.
129A.K. testified that she initially met the father through his relationship with her younger sister in Canada. She stated the father contacted her by a social media application and also by telephone on December 31, 2021. Her testimony was that the father had begun sending her, her mother, and her sister private messages that the mother had posted on social media, pictures of a child's bed and stroller the father claimed had cigarette burns on them and were broken and claiming that the mother had another lover. In the telephone conversation, A.K. indicated that the father was blaming the mother for the troubles in their relationship citing that she did not want to work and was complaining about his parents.
130A.K. testified that she was aware that the mother was involved in a serious car accident when she was 17 or 18 years old and that as a result, a cyst was found on her brain. A.K. testified that she has never seen her sister depressed, suffer any physical or emotional health issues or seen her be afraid to drive.
131A.K. testified that she did interfere in a conversation with her partner and a lawyer who came to the village asking questions about the village. She acknowledges not identifying herself as the mother's sister during this conversation.
132A.K. stated that she is very close with her sister, she loves her very much, is concerned about her situation and will support her in any way that she can.
D.M.
133D.M. is the mother's brother-in-law. He has been in a common-law relationship with the mother's younger sister since the year 2010.
134D.M. is the father of two (2) children, aged almost eight (8) and three (3) years old. He shares his home in Mississauga, ON, which is a rented two-bedroom home approximately 1000 square feet in size, with his common-law partner, his children, and his father. He testified that he has his own construction company, and that his partner does not work outside of their home.
135D.M. testified that he and his family have a close and loving relationship with the mother. He testified that his children love their cousin, and that his older child is especially close to her.
136D.M. stated that the mother and her child stayed at his home when she and the father had arguments. He stated that these periods were no longer than two to three days or perhaps at most, one week in duration. He stated, however, that his home is not suitable for the mother and the child to stay permanently or for longer periods of time given its size and the members of his family who reside there.
137D.M. testified that he was introduced to the father when he began his relationship with the mother. He stated that he treated the father like an extended member of his family. D.M. testified that throughout his relationship with the father, they had only one disagreement. He stated that this arose when the father wrote to him accusing him of sleeping with "both sisters." D.M. testified that he replied that he treated the mother like his biological sister.
On behalf of the father
M.B.
138M.B. testified virtually and in English, with the assistance of an interpreter, if needed.
139M.B. testified that he knows counsel for the father as his father and counsel were friends when they attended law school in Poland together. M.B. stated that he has kept in touch with counsel for the father following his own father’s passing.
140M.B. stated he is an attorney in Poland, practicing mostly in the area of civil law, and that he was asked by counsel for the father to travel to Stare Guty.
141M.B. testified that he was in Stare Guty on August 10, 2022, that this was his first time in the village and that he stayed approximately two (2) hours. He testified that the village is in the Mazury region, which he described to be "in the middle of nowhere," and only visited by tourist in the summer.
142M.B. testified that the few buildings in the village are very old and looked abandoned. He stated there are no schools, no shops and no bus stops and that only 5 or 6 houses look occupied in the village. He conceded that he does not know the population of the village but stated that it is small.
143M.B. acknowledged that he did not know where the nearest school to the village was, but stated that in his opinion, a school should be in the village where a child is raised.
144M.B. acknowledged that he was aware that the village has a train station, however, added that trains must be rare as he looked at the timetable. He could not remember the frequency of the trains when asked.
145M.B. stated that he did see a playground by a building called the common room in the village, however, it was abandoned. When asked on what basis did he drew this conclusion, he stated that there were no children present, the facilities were old and not attractive, the building was closed, and the fence was locked.
146M.B. described his attempts at having a conversation with the village elder about Stare Guty. He testified that a village elder is a representative of Poland, and as such has an obligation to speak to any polish citizen. He further stated that as a polish citizen, it is his right to have his questions answered.
147M.B. described that a woman interfered in his attempts to have a conversation with the village elder. He stated that he identified himself, that his questions were not about the mother, but about her job offer at the common room.
148M.B. stated that the village elder was reluctant to speak with him and did not answer his questions.
B.M.
149B.M. is the father's sister. She resides in Mississauga, ON. She testified that she came to Canada on September 11, 1996, when she was twenty-two (22) years old. She is currently forty-eight (48) years old. She resides with her common-law partner of twenty-five (25) years.
150B.M. stated that she came to Canada from Poland for a "better life, a better future." Since arriving in Canada, she has worked as a babysitter and a cleaner. She testified that all of her close family is in Canada.
151B.M. described the mother as a "wonderful mom" who is taking good care of the parties' daughter. B.M. describes her brother as having a good relationship with his child. She testified that the father did participate in outings prior to and after the parties separated. She stated that the child has a mother and a father who love her.
152B.M. stated that she has a very good relationship with her brother’s child, that she loves the child, and they do many activities together. She stated that she is not trying to be a second mother to the child, but simply to be the best aunt. She testified that she sleeps at her brother's home whenever the child is there for visits.
153B.M. described her relationship with the mother as a good one and that her door is always open to her including staying with her if she returned to Poland and came to Canada for a visit. She conceded that she did not offer to have the mother stay at her home during the times that the parties argued.
154B.M. conceded that she has had no contact with the mother for over a year. She testified that she did not know if she was permitted to contact the mother.
155B.M. testified that she does not understand when the mother has not even tried to remain in Canada. She stated that she does not understand why the mother wishes to return to Poland given her decision to be in a relationship and have a child in Canada. She believes that a child should have his/her parents in the same country.
156B.M. testified that the mother did not allow her or her brother to see the child after "she ran away from her brother's home." She conceded that "running away" may not be an appropriate description as she was not there and does not know why the mother left.
157B.M. testified that the father is not a heavy drinker but acknowledged she does not live with him.
E.A.
158E.A. is B.M.'s common-law partner. He testified that they have been together for twenty-five (25) years and living together since 2008. He described their relationship as being wonderful.
159E.A. testified that he came to Canada on December 6, 1995, from Iraq. He is fifty-two (52) years old and is employed laying flooring.
160E.A. stated he considers the father as his brother and that he has a good relationship with his in-laws. He further described his relationship with the mother as good although they do not communicate given the language barrier between them.
161E.A. stated he cares a lot for the child, that they have a beautiful relationship and that he is called uncle in Polish by the child. He stated that he considers the child part of his family; however, he acknowledged that none of his direct family members have met the child.
162E.A. stated that the relationship between the child and the father, based on his observations, is special and that they love one another.
163E.A. stated that he lives in a two-bedroom apartment and that the mother and child are welcomed to stay anytime. He conceded that he has not offered to the mother to stay at his home. He stated that this has not occurred given their inability to communicate and that she has never asked to do so. He testified that his is aware that the mother and child are currently residing in a shelter.
Credibility
164Both parties challenged each other's evidence given throughout the trial as being unsupported by the evidence as a whole. The accusations largely focused on their respective denials of the other's allegations regarding their behaviours leading up to their separations and their ability to properly care for their child.
165Furthermore, the mother challenged the father's evidence regarding his finances as being either contradictory or unsupported of his declared income in his sworn financial statements.
166Both parties submitted that where there was a conflict, their evidence should be preferred to the other.
167Credibility assessment is not an exact science. In Baker-Warren v. Denault, 2009 NSCC 59 (N.S.S.C.), Forgeron, J. noted as follows:
"It is not always possible to "articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events." R. v. Gagnon, 2006 SCC 17, para. 20. I further note that "assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization." R v. R.E.M., 2008 SCC 51, para. 49."
168In Christakos v. De Caires, 2016 ONSC 702, Nicholson, J, at para. 10, adopted the following considerations detailed by MacDonald, J. in Re Novak Estate, 2008 NSSC 283, 269 N.S.R. (3d) 84:
There are many tools for assessing credibility:
(a) The ability to consider inconsistencies and weaknesses in the witness' evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness' testimony and the testimony of other witnesses.
(b) The ability to review independent evidence that confirms or contradicts the witness' testimony.
(c) The ability to assess whether the witness' testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133, it is "in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions", but in doing so I am required not to rely on false or frail assumptions about human behaviour.
(d) It is possible to rely upon the demeanour of the witness, including their sincerity and use of language, but it should be done with caution (R. v. Mah, 2002 NSCA 99 [at paras.] 70-75).
(e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. R. v. J.H. 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (OCA) [at paras.] 51-56).
(f) There is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness's evidence, and may attach different weight to different parts of a witness's evidence (See R. v. D.R. [1966] 2 S.C.R. 291 at [para.] 93 and R. v. J.H. supra).
169In Ouellette v. Udin, 2018 ONSC 4520, Shelston, J. described, at para. 9 of his decision, the assessment of credibility as "a holistic undertaking incapable of precise formulation."
170In Al-Sajee v Tawfic, 2019 ONSC 3857, Chappel, J. described, at paras. 41 and 42 of her decision, assessing credibility as a complex task and provided a comprehensive summary listing what courts should consider in weighing and assessing the credibility and reliability of witnesses.
171Mindful of these considerations, the following observations are pertinent to assessing the credibility of the parties and their witnesses, and the reliability of their testimony.
I -Admissions against interest
172It is the rare case that a parent will disclaim a child's love for the other parent.
173Neither party disputed that the pregnancy was a planned and welcomed event by them and their extended families. There is no dispute that their child is loved by both of them. Both the mother and the father, and their extended family members who testified on their behalf, were sincere in their testimony in this regard.
174However, each party highlighted in their evidence the behaviour of the other that led to their separation, on two occasions, and their concerns regarding the other's ability to properly care for their child given their respective claims for sole decision-making and primary residence. At the same time, the parties' each downplayed the impact of their own behaviour during their relationship.
II-Bad Faith
175In the decision of Scalia v. Scalia, 2015 ONCA 494, the Court of Appeal, at para. 68, stated that the essential components of the legal test for bad faith in the family law context are intention to inflict harm, financial or emotional, or to deceive by the concealment of information or deception by one party against the other party or the Court.
176I find that the father avoided any meaningful explanation in his testimony in response to the mother's evidence that during their relationship, she was physically and emotionally abused by him and/or his parents.
177The father's response was to acknowledge that the parties argued, and that they both engaged in these quarrels at an equal level. His testimony consisted of both parties engaging in the exchange of bad words and a blanket denial of his use of physical force, of his language as being abusive, of his behaviour as being controlling or impacted by jealousy.
178The paternal grandparents were not called as witnesses during the trial nor did the father address, in his testimony, the allegations by the mother of their treatment of her.
179The evidence is clear that the father was aware of the mother's reliance on him financially during the relationship and post-separation, and her reliance on her family in Canada as her only source of financial support. The father was aware that the mother and his child have been residing in a shelter since June 2022.
180The evidence is clear that the father began paying child support as of February 2022. Yet, the father testified that following the parties' separation he opened and contributed financially to a registered education savings plan for his child's future rather than providing a higher financial contribution to the mother to assist her in meeting the child’s current needs.
III-Demeanour
181Both parents became emotional during the delivery of their evidence regarding their child.
182The mother's evidence, however, was completely closed to anyone of the father's family being a significant person in her child's life. She was unwilling to concede facts that did not support her narrative that the father, although loving his child, did not begin to play a meaningful role until a court order was granted on the issue of parenting time.
183The mother was also focused on her unwavering belief that the father broke his promise to care for her in all aspects, including sponsoring her for permanent residency status in Canada. The mother was unwilling to accept her role in the failure to gain sponsorship status in Canada, and that other options may have been pursued by her following the parties' separation.
184The father displayed no recognition on his own behaviour which resulted in the mother having no residency status in Canada. Furthermore, the father would not concede in his evidence that his child's primary parent is the mother, and that he requires the support of his family, notably his sister, when his child is in his care.
185Both parties testified that despite their separation and the father’s criminal release conditions, they each reacted to social media posts of the other. They each testified that these reactions were all accidental in nature.
186Both parties were less inclined to admit to facts which reflected poorly on their parenting abilities and spoke to the strength of the other parent.
187As a result, I find that neither party was a wholly credible witness.
188Each party was able to a certain degree to point out deficiencies, or contradictions, in the other's evidence, but none that individually or cumulatively would lead this Court to reject the entirety of the proponent's evidence.
189However, where the parties' evidence about each parent's involvement with the child, during and after the relationship conflicts, the mother's evidence is to be preferred.
190Both parties' evidence was that during the latter months of her pregnancy and following the birth of their child, the mother remained at home while the father worked, long hours, outside of the home. Both parties' evidence is that the child has been in the full- time care of the mother since their initial separation in July 2021 and following their last separation in December 2021.
191Each family members called by the parties were credible witnesses. They were all supportive of the party calling them to testify. Each witness was somewhat balanced in their evidence, in that although supporting the position of their relative, still acknowledged the need for the other parent to be in the child's life. Each witness' observations of the mother or the father's interactions with the child may have been overstated to favour the party he or she was "supporting," but I accept was given sincerely.
192The evidence of life in the village of Stare Guty in Poland given by A.K. and M.B. painted completely opposite pictures.
193A.K. described an ideal life in a small, but closely knit community which would support her sister and her child should they be permitted to relocate there. Her testimony was void of any consideration to the adjustment needed for the mother to return to the village she voluntarily chose to leave for a life in Canada. Her testimony was void of any consideration to the adjustment needed for the child to come to a country/village and extended family completely unknown to her.
194As problematic as A.K's evidence was, I find that M.B.'s evidence more lacking.
195M.B. was presented as a witness to recount his observations of the village of Stare Guty. However, he did not limit his evidence to mere observations. Rather M.B. presented his opinion and his views regarding the unsuitability of Stare Guty which, he described as void of any resources and "in the middle of nowhere”. This opinion was based on one two-hour visit and no other context was provided.
196M.B. also testified that, in his opinion, a school should be located in the village where a child is raised.
197I find that given the absence of any foundation for M.B. to provide an opinion and his limited time in and knowledge of the village of Stare Guty, his evidence cannot be given much weight. For these reasons, the evidence of Stare Guty provided by A.K. and the mother is to be preferred.
THE LAW: PARENTING ORDERS
198The relevant sections with respect to parenting orders are set out below:
Parenting order, application by parent
21 (1) A parent of a child may apply to a court for a parenting order respecting,
(a) decision-making responsibility with respect to the child; and
(b) parenting time with respect to the child.
Best interests of the child
24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section
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.
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.
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.
199The amendments to the CLRA also include subsection 18(2) which contains an expansive definition of what constitutes family violence. It reads as follows:
"Family violence"
For the purposes of the definition of "family violence" in subsection (1), the conduct need not constitute a criminal offence, and includes,
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse; and
(h) threats to kill or harm an animal or damage property; and the killing or harming of an animal or the damaging of property.
200In W.S. v. P.I.A., 2021 ONSC 5976, McGee J. stated at para. 24 the following impact of family violence when the court must make orders in the best interest of a child:
A history of family violence has always been an important factor in the adjudication of parenting disputes. An Order for decision making is never appropriate when there is evidence that it will be misused to frustrate or control the other parent or a child in a manner that is not in the child's best interests. A history of family violence is also relevant when deciding a parenting plan, specifically, its impact on the ability and willingness of the parent who engaged in family violence to care for and to meet the needs of the child, and to cooperate with the child's other parent.
201The court is also directed to consider the factor of allocation of parenting time as provided in subsection 25(6) of the CLRA which provides as follows:
" 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."
THE LAW: RELOCATION
202Sections 39.3 and 39.4 of the CLRA set out a complete code for relocation situations. The portions of that code that are relevant to this factual situation are set out below:
Relocation
39.3(1) A person who has decision-making responsibility or parenting time with respect to a child and who intends a relocation shall, at least 60 days before the expected date of the proposed relocation, notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention.
Notice requirements
(2) The notice shall be in the form prescribed by the regulations or, if no form is prescribed, shall be in writing and shall set out,
(a) the expected date of the proposed relocation;
(b) the address of the new residence and contact information of the person or child, as the case may be;
(c) a proposal as to how decision-making responsibility, parenting time or contact, as the case may be, could be exercised; and
(d) any other information that may be prescribed by the regulations.
Best interests of the child
s. 39.4(3) In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24, as well as,
(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child's life of each of those persons;
(d) whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement;
(e) the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and
(g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance.
Factor not to be considered
(4) In determining whether to authorize a relocation of the child, the court shall not consider whether, if the child's relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate.
Burden of proof
(5) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.
203The Ontario Court of Appeal in Moreton v. Inthavixay, 2021 ONCA 501, stated there is no absolute rule or requirement that the issue of custody must be determined before the issue of relocation. Rather, the sequence depends on the circumstances of the case and the best interests of the children.
204This matter began in November 2021 therefore the amendments to the Children's Law Reform Act, ("CLRA"), R.S.O. 1990, c. C.12 enacted on March 1, 2021, were in force. Neither party raised during the trial any concerns regarding whether the notice requirements under the CLRA.
205Both counsel, in their closing submissions, referenced the recent decision of the Supreme Court of Canada in Barendregt v. Grebliunas, 2022 SCC 22. Justice Karakatsanis, writing for the unanimous majority of the court, gives a historical overview of the legislative framework governing relocation applications, whether initiated under the provincial legislation, such as the CLRA, or the Divorce Act, R.S.C. 1985, c. 3 (2nd supp).
206In her decision, Justice Karakatsanis sets out, in paras. 105 to 108, the legal principles established in the court's decision in Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 SCR 27 in considering mobility cases.
207Justice Karakatsanis also noted at para. 112 that when mobility issues are raised at first instance, as in this case, “Without a pre-existing judicial determination, a parent’s desire to relocate is simply part of the factual matrix in the assessment of what parenting arrangement is in the best interests of the child.”
208At para. 123, Justice Karakatsanis states as follows "In all cases, however, the inquiry remains an individual one. The judge must consider the best interests of the particular child in the particular circumstances of the case."
209At paras. 148 to 155, Justice Karakatsanis provides a summary of the framework for determining whether relocation is in the best interest of a child. The relevant paragraphs are as follows:
"[152] The crucial question is whether relocation is in the best interests of the child, having regard to the child's physical, emotional and psychological safety, security and well-being. This inquiry is highly fact-specific and discretionary."
153… A court shall consider all factors related to the circumstances of the child, which may include the child's views and preferences, the history of caregiving, any incidents of family violence, or a child's cultural, linguistic, religious and spiritual upbringing and heritage. A court shall also consider each parent's willingness to support the development and maintenance of the child's relationship with the other parent, and 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. These examples are illustrative, not exhaustive. While some of these factors were specifically noted under Gordon, they have broad application to the best interests of the child.
154However, traditional considerations bearing on the best interests of the child must be considered in the context of the unique challenges posed by relocation cases. In addition to the factors that a court will generally consider when determining the best interest of the child and any applicable notice requirements, a court should also consider:
the reasons for the relocation;
the impact of the relocation on the child;
the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child's life of each of those persons;
the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, agreement, and the likelihood of future compliance.
The court should not consider how the outcome of an application would affect either party's relocation plans - for example, whether the person who intends to move with the child would relocation without the child or not relocate…"
210In Hebert v. Hebert, 2021 ONSC 3552, the court applied Gordon v. Goertz, modified to consider the reason for the move as set out in the amendments to the CLRA.
ANALYSIS: PARENTING ORDERS AND RELOCATION
211Both parties are claiming an order for sole decision-making and primary residence of the child.
212There is no dispute regarding the issue of notice of the relocation or that the burden of proof is on the mother to demonstrate that relocation should be granted.
213The factors to be considered to determine which order requested by the parties are in this child's best interest shall be individually considered.
The child's needs, given the child's age and stage of development, such as the child's need for stability
214The child subject to this proceeding was eight (8) months old at the time of the parties first separation. The parties briefly reconciled for a period of approximately one (1) month in December 2021. At the time of the parties' final separation, the child was fourteen (14) months old. At the time of trial, the child was twenty-two (22) months old.
215Neither party raised any concerns regarding the child's development or milestones being achieved. Both parents described their child as happy and healthy.
216There is no dispute that throughout their relationship, the mother, following the birth of the child and until the parties' separation in July 2021, remained in the home caring for the child.
217There is also no dispute that for the period during the parties' first separation and reconciliation, being from July to December 2021, both parties testified that the child remained in the primary care of the mother and the father had parenting time, as arranged between the parties.
218There is no dispute that following the parties' last separation, the child remained in the primary care of her mother. A temporary without prejudice order recognizing this status quo was granted on April 26, 2022.
219The evidence is clear that parenting time between the father and the child, following the parties’ initial separation in July 2021 until reconciliation in December 2021, occurred and was arranged between the parties. The evidence is clear that parenting time between the father and the child following the parties’ final separation on December 31, 2022, did not occur until a court order was granted in July 2022. The parties’ evidence as to the reasons for this differ.
220The evidence is contradictory between the parties as to the father's involvement with the child during the period following the birth and the parties' initial separation.
221I find that the evidence supports the conclusion that the mother is this child's primary parent. The father's own testimony detailing his work commitments, as a self-employed stone mason, requiring work hours beginning early in the morning and ending late in the evening and that his child went to bed early support this conclusion.
222I accept the evidence that the mother was the parent primarily responsible for the caring of the child, not to the exclusion of the father, but with his limited involvement. Both parties presented numerous pictures to support their position regarding involvement with the child. I find these pictures, from both parties, to be of limited use given that they capture isolated periods of time without contextual support.
223With respect to the stability factor, the mother emphasized that she does not have permanent residency status in Canada. Her evidence is that her work permit, obtained in 2018, was forfeited when she left her employment to reside with the father. This is not disputed by the father.
224The mother testified that the father, at the time of his invitation that they co-habit in his home, made a commitment to sponsor her as his spouse to obtain permanent residency in Canada.
225The father's evidence is that he followed through with his commitment to sponsor the mother. It was due to her actions, not his, that the sponsorship application was not pursued.
226When considering the evidence presented by both parties, I am of the view that the mother's evidence is more compelling.
227The mother's evidence, which I accept, was that she was committed to making a life in Canada with the father. In order to do so, she needed to acquire residency status given that she gave up her work permit in order to begin making a life with him. I find that the father has not presented any evidence, other than his own testimony, to support his theory that the mother would sabotage her own plan by not following through with the sponsorship application. The father's sponsorship was the anchor to the mother’s immigration application. I accept the mother's evidence that when the parties' relationship began to deteriorate, the father withdrew his commitment to the mother as her sponsor.
228In his evidence and during the mother's cross-examination, the father raised the absence of the mother initiating her own independent immigration application based on humanitarian and compassionate grounds.
229The submission on behalf of the father is that the absence of this step does not give the mother any opportunity of remaining in Canada, the country the mother testified that she had visited consistently since 2015 and wanted to remain in given her relationship with him. Although not directly stated as such, the submission appears to be that by not commencing any immigration application, the mother is engaging in a self-help remedy as remaining in Canada is not an option available to her given her decision.
230In her testimony, the mother acknowledged that she has not commenced her own immigration status application. She testified that she has not done so given the limited chance of success and length of time it would take for the application to proceed through the mandatory steps.
231Neither party called any witness on the issue of immigration. The father, other than questioning why the mother did not begin her own application, did not address the mother's evidence regarding the success rate and/or the period of time such an application would take.
232The result is that I am left with only the mother's evidence on this issue. I accept her evidence, that given the language barrier and her precarious financial circumstances, undertaking this effort presents many challenges for her and if such an application were initiated, the process is lengthy, and success is limited.
233What is not disputed is that the mother is currently in Canada without any permanent status. The mother could be deported from Canada to Poland at any time, even if an application had been commenced on humanitarian and compassionate grounds. Given these proceedings, it is clear that should such a deportation occur the child would not be permitted to accompany her mother, on consent of the parties, to Poland.
234The child is a Canadian citizen. The mother's evidence is that once in Poland, she could apply for the child to have Polish citizenship without impacting her Canadian citizenship and permitting the child to remain in Poland with the primary parent. This was not questioned by the father in his evidence.
235Given this evidence, I find that it would not be in this child's best interest if the mother, as the primary parent, was deported and unable to continue to care for the child. As such, I find that the best option for the child's stability is to be permitted to move to Poland with the mother.
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
236Both parties in their evidence recognized the nature and the strength of the child's relationship with each of them and the other parent.
237While the mother's testimony was clear that this relationship has developed due largely to the parties' separation, she did acknowledge that the father has consistently exercised his parenting time with his child since the granting of the court order.
238The father also recognized that the child is close to her mother. Despite his testimony raising concerns of the mother's behaviour during pregnancy, the father, along with his sister and her partner who testified, acknowledged the strength of the mother as a parent. B.M. testified that the mother "... is a wonderful mom taking good care of [the child]."
239I further find the evidence from the father lacking on the issue of impact on his child should a relocation be permitted. The father’s evidence was extreme in that he believed that he would never see his child. The father provided no details as to what steps he was prepared to undertake to maintain a relationship with his child should the relocation occur.
240The evidence was clear that the child spends time with the paternal aunt, the maternal aunt, uncle, and cousins. The evidence is clear that the child is familiar with the paternal grandparents and uncle. The evidence is clear that the child, through video calls, is familiar with the maternal grandmother, aunt, uncle, and cousins in Poland. It is equally clear that the child has never met some members of the maternal and paternal family members whether they reside in Poland or Canada.
241Unfortunately, the evidence presented by both parties does not permit me to conclude that, given the child's young age, these relationships with extended family members are such that they "play an important role" in the child’s life. These individuals may perceive their roles as being important, particularly the paternal aunt. Their evidence was clear that they would miss the child, but none of the witness presented any evidence to demonstrate that the child would be impacted should in-person contact become less frequent due to a relocation to Poland by the mother.
Each parent's willingness to support the development and maintenance of the child's relationship with the other parent
242The mother's position is that she has always supported the father's relationship with his child. She testified that following the child's birth and prior to the parties' separation, she asked the father daily to interact with the child and that he refused. She testified that she was initially seeking supervised parenting time for the father and the child as she was concerned that he would not know how to care for this child given the limited involvement the mother testified to.
243The father denied this allegation and produced in support a brief filled with pictures showing his interaction with his child which he testified occurred prior to and post-separation following the granting of the temporary parenting time order. As indicated, this type of evidence is limited in the weight to be allocated.
244The parties' evidence was that they jointly celebrated the child's first birthday in 2021, engaged in activities during parenting time and celebrated the child's first birthday and Christmas in 2021, together as a family. The evidence does support the conclusion that both parents have the ability to set aside their differences and focus on their child's needs.
245Both parties testified that they are committed to ensuring that the child's relationship continues to be fostered and encouraged no matter the place of residence. I accept that both parents were sincere in their statements. I find however, that the mother’s evidence provided more details as to how she would ensure this occurs.
The history of care of the child
246The evidence supporting my determination that the mother has been and continues to be the parent primarily caring for the child has been noted.
The child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained
247Given the child's age, views and preferences are not a factor to be considered.
The child's cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage
248Both parties testified that their Polish culture and heritage is important to them and as such is important that their child be raised aware of this. The child shares her parents' faith. Both parents testified that they are active participants in their community.
249There is no evidence that either parent wishes this to change whether the child remains in Canada or is permitted to relocate to Poland.
Any plans for the child's care
250But for the pivotal determination about relocation and residency, the parties' evidence is very similar with respect to parenting time, including holidays/special days, which include Polish holidays.
251The mother’s testimony is that as parents, through discussion, they could arrive at an arrangement, covering both in-person and virtual visits, that is in the best interest of their child. This would apply regardless of the location of the child's residence.
252The father did not provide any contrary evidence other than to focus on the logistical arrangements needed to facilitate parenting time given his current criminal conditions, his work hours, and the time difference, should a relocation be permitted.
253If relocation is ordered, the mother and child will live in the village of Stare Guty, Poland. The mother and child will have, rent-free, separate accommodations within the home of the maternal grandmother. The mother will be employed, on a part-time basis, overseeing the village's community centre which will include, as part of her responsibilities, developing and overseeing programs for children. Her employment will permit her to have her child in her care until such time as the child is old enough to go to daycare and/or school, located in another village close in proximity. The mother will also have access to a pottery studio where she can create inventory to sell to supplement her income.
254If relocation is not ordered and primary residence is granted to the mother, she and the child will remain residing in a shelter unless, through a spousal and child support order, she is able to secure and pay for other accommodations. This plan would be impacted if the mother was deported.
255Employment opportunities for the mother are limited given her absence of status in Canada and her inability to read or speak English.
256The father's evidence was that that mother could return to work at the cannabis farm. However, the only evidence presented by the father was the mother’s work history. The father presented no evidence that such a position is open to the mother currently as the evidence is clear that she has not worked there since July 2019. Furthermore, even if a position was available, this employment is 90 minutes from the father's home such that the mother's relocation, possibly with the child, to that area is likely to be required.
257If relocation is not ordered and primary residence is granted to the father, the child would reside in his home and cared for with the assistance of family members. The father’s evidence did not provide any details regarding which family members would be of assistance, there willingness to do so, where the child would attend school/daycare or his involvement with the child given his work hours which he described to be from early morning to late evening during the week.
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
258The mother has demonstrated her ability and willingness to care for and meet the needs of the child.
259The father is less able to care for the child given his work obligations. He states that he can meet the child's needs should the child be placed in his full-time care. I disagree as the evidence is that he requires the assistance of family members, notably his sister, in caring for the child when she in his limited care every second weekend and once per week. As stated, his plan should he be granted primary residence of the child was limited ad absence of basis details.
260I do not doubt the father's willingness to be a more active participant in his child's life; however, the evidence shows that despite this willingness, he has not demonstrated his ability to do so at this point.
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
261The mother detailed throughout her testimony her many efforts to engage the father in matters involving their child during their relationship. She was frustrated and complained about the father's failure to engage given that she felt that this was important to establish a relationship between them. She testified that his unwillingness to engage lead to many arguments between them.
262The father denied that he did not engage with the child. He disputed that the parties’ arguments were about his behaviour but rather due to the mother’s behaviour.
263As previously stated, the recognition of the mother as the child's primary parent is well supported by the evidence at trial. I further find that the father willingly delegated all responsibilities for the child to the mother. In other words, their relationship was a traditional one being that the father was the breadwinner, working long hours outside of the home so as to be able to financially care for his family, while the mother's role was to care for the child and the home.
264Each parent expressed their ability to communicate with the other on matters affecting their child.
265Their willingness to cooperate is presently compromised by terms of a release order granted within the context of criminal proceedings involving the father. These terms prohibit him from communicating with the mother and not be within 300 meters of her at any time. The mother’s evidence demonstrated that she has considered how she and the father can communicate within these limitations. The father’s evidence merely presented roadblocks to communication that he maintains are as a result of the false criminal allegations against him.
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;
266The mother's allegations of the father's emotional, financial, and physical abuse describe the kind of coercive and controlling behaviour which are captured by the definition of "family violence" defined by the 2021 amendments to the CLRA.
267In this case, there is evidence that the allegations of violence resulted in the police, the local child protection agency and family members, on both the maternal and paternal side of the family, being aware of their occurrences.
268I find that the totality of the evidence makes it clear that the father, and his parents, exhibited a pattern of coercive and controlling behaviour towards the mother that began shortly following the start of the parties' relationship as referenced in section 24 (4) of the CLRA family violence factors. In making this determination, I am assisted by the expanded definition of "family violence" under subsection 18(2) of the CLRA.
269I accept the mother’s testimony that she suffered physical abuse at the hands of the father and his parents. In addition, I accept the mother’s evidence that she was dependent on the father financially throughout their relationship. I accept both parties’ evidence that these arguments involved vulgar language and inappropriate names. I accept the mother’s evidence that the father did not follow through on his commitment to sponsor her in Canada and took no responsibility for his failure to do so throughout the relationship.
270As such, I find that 18 (2) (a) physical abuse; (f) "psychological abuse" and (g) "financial abuse" apply to the facts of this matter.
Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child.
271I have referenced earlier in this decision the current criminal prohibitions affecting contact between the mother and the father. Although contact with the child is not specifically impacted by this order, the child is indirectly impacted as it limits contact between the parents.
The Additional Factor of the Desirability of Maximizing the Contact between the Child and Both parents
272The mother is aware that if she is allowed to relocate to Poland with the child, the father's regular in-person contact with the child will be reduced given the distance and cost of travel.
273As already noted, both parents' plans, in the face of a possible relocation, were not provided in writing and were lacking details when presented orally during their testimony.
274Despite the absence of specificity, both parents testified that they were prepared to discuss and arrive at a resolution which would allow their child to continue to maintain and foster a relationship with them both, no matter where her residence was.
275The mother's plan, however, recognized that extended periods of time would be required for parenting time, should the relocation be granted, given the distance, and anticipated future adjustments once the child became of school/daycare age.
276The father testified that he would be prepared to pay for travel expenses for the mother to come and visit her child in Canada four (4) times per year. His plan did not consider the possibility that the mother would not be permitted to re-enter Canada following her return to Poland, especially should this occur as a result of a deportation order.
277The father's evidence was further lacking if the scenario that the child would be in his care and the mother remained in Canada. The father's evidence was that the mother could return to working at the cannabis farm but did not include any proposal as to her contact with the child should this occur given that this farm is located 90 minutes away from his residence.
278The mother further testified that should the relocation not be granted, and the child remain in her primary care, the current parenting time schedule could continue with additional time over the holidays that they could discuss and agree to. The father also testified that additional time could be discussed between them in this scenario.
279In considering both parents' plans, I find that the mother's proposal demonstrates that she has given thought as to how the child and the father will maintain a relationship. This thought, I find, indicates that the mother commitment to continuing to support the father's role in the child's life is supported by an identifiable plan more so than the father’s.
Relocation Factors
280Section 39.4(3) of the CLRA sets out the best interest factors in addition to those set out in section 24(4) where the Court is being asked to authorize a child's relocation. While many of these factors may be subsumed under section 24 and would typically form part of the best interests' analysis, these factors focus on critical considerations in relocation cases.
281This legislative framework is consistent with the Court of Appeal's approach adopted in its decision in Berry v. Berry, ONCA 2011 705. The Court states at paragraph 10 that "… the superordinate consideration in a mobility case is the best interests of the child from a child-centred perspective."
282The factors to be considered to determine which order requested by the parties are in this child's best interest, given the relocation request, shall be individually considered.
The reasons for the relocation
283There is one principal reason for the relocation, namely the mother's inability to remain in Canada given her absence of status. This reason is child-focused as should the mother be deported, the child, unless by consent of the parties, would not be accompanying her to Poland.
The impact of the relocation on the child
284The relocation will present an adjustment to the child as she has never travelled to Poland; has only had contact with her maternal family members in Poland through video/telephone and will reduce the frequency of contact with her father and the paternal and maternal family members in Canada.
285The child is not in school nor is she enrolled in daycare. No evidence was lead regarding any special educational and/or medical needs. Her language skills are limited given her age; however, the evidence is that she uses words to express herself in both English and Polish. There was no evidence lead as to her having a significant attachment to her community.
286Neither parent raised concerns of adjustment during their evidence should a relocation be ordered.
287The father did testify that following a four-month period of not seeing his child, she did not recognize him and called him uncle in Polish and not father. He stated however that following the first visit, the child did not hesitate to come to him and address him as father.
The amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child's life of each of those persons
288As indicated, the current parenting arrangement pursuant to a temporary order granted July 15, 2022, is for the child to be in the father's care every second Friday evening until Sunday evening and every Wednesday from 3:00 to 8:00 p.m.
289It is not disputed that since this order was granted, the father has been consistent in following this schedule.
Whether the person who intends to relocate the child complied with the applicable notice requirement under the legislation
290This consideration is not applicable as the evidence is not disputed that the mother advised the father of her wish to relocate and plead this relief in her Application filed November 5, 2021.
291Neither party raised as an issue the non-use of the forms provided by the regulations to the CLRA following the enactment of the amendments to the legislation that introduces section 39.3. Given the parties' positions and the particular facts of this case, I find that exercising my discretion under subsection 39.3(3) and find that the notice requirements do not apply is appropriate in these circumstances.
The existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside
292This is not a relevant consideration in this case.
The reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility, or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses
293This factor has been considered under the maximum contact principle under section 24(6) of the CLRA.
Whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance
294This factor is important as there must be confidence that a parent will support the terms of any relocation Order. This is particularly relevant given that the relocation request is Poland, and not another city within Canada or North America.
295The father's position is that if a relocation is permitted, he will never see his child again. His testimony on this point is the mother's refusal not to allow him to see his child for a four-month period following the parties' final separation on December 31, 2022.
296The mother testified that the events leading to this separation resulted in the police and a local child protection agency becoming involved and investigating the allegations family violence. The investigation led to criminal charges laid against the father and the child protection agency verifying concerns, however, not to the extent that their ongoing involvement was required in this matter.
297The mother testified that she was prohibited from contacting the father due to his release conditions. She further stated that she was always agreeable for parenting time to occur, however, given her view that the father had never cared for the child's day-to-day needs, a level of supervision was required. The mother denied refusing parenting time.
298Both parties agreed in their testimony that since the granting of the temporary parenting time order in July 2022, there has been no history of non-compliance by either of them.
299Both parties agreed in their testimony that for the period between their first separation in July 2021 to early December 2021, when they reconciled, the arrangement of parenting time for the father was not an area of disagreement between them. The mother in her testimony did indicate a level of frustration in not being told by the father prior to the parenting time, that this time would include travelling within the GTA and require an overnight stay. However, she did testify that these visits were beneficial for the child.
300I find therefore that there is a history of compliance by both parents of their obligations, whether ordered by a court or agreed to between themselves. This compliance also includes the father's payment of child support since February 2022.
CONCLUSION – PARENTING
301As stated, the central issue to this litigation is whether or not it is in the best interests of this child to permit the mother to move to Poland with the child.
302As stated by Curtis, J. at paragraphs 128 and 130 of her decision in O'Brien v. Chuluunbaatar, 2019 ONCJ 490:
"The relocation issue cannot be addressed or decided in a vacuum independent of consideration of what custody arrangement is in the child's best interests. Decisions in relocation cases require a delicate balancing act. The court must consider all the facts and factors involved. The court must weigh the benefits of the move to the mother and the child, and compare those benefits to the losses that would result from the move." See also: Bjornson v. Creighton, 2002 CanLII 45125 Ont. C.A, para.29; Bartlett v. Bartlett, 2004 CarswellOnt 4709 (Ont. Ct.), para. 12.
Decision-making in relocation cases is not scientific. There is no formula and no template for analysis. These decisions involve the exercise of the court's discretion, taking into account the legal framework and all of the circumstances, to determine if such a move is in the best interests of the particular child involved.
303Justice Curtis' analysis was upheld by the Ontario Court of Appeal 2021 ONCA 555, who overturned the decision of James, J. of the Superior Court of Justice.
304Following the analysis of Justice Curtis, the court must examine what order is in the best interest of this child. Is this child better off moving to Poland with the mother, or staying in Ontario with the father? These are the only options presented to the court given the mother's absence of status in Canada. The court must also consider that if the move is permitted, will the benefits of the relocation outweigh any losses to this child.
305As summarized by Justice Curtis in paragraph 129: "That is the real question here: is the move in this child's best interests? Is the move a positive for this child?"
306I have considered the factors set out in sections 24 and 39.3 of the CLRA in determining what order is in this child's best interest, including whether or not the mother should be permitted to relocate to Poland with the child.
307The evidence is clear that both parents have a strong and loving relationship with their child. However, the evidence supports the finding that the mother is and has been since birth, the child’s primary parent. I further find that the mother’s primary role to this child was agreed upon by the parties when becoming aware of the pregnancy and implemented following the birth of their child. The breakup of the family unit has not impacted that the mother remains this child’s primary parent.
308The mother is struggling in Canada. She has limited family support, resides in a shelter, does not speak any other language than Polish, has no employment, and most importantly has no security given the absence of a residency status. The absence of status results in the mother being disentitled to receive any social assistance or resources Canada is able to offer her as a single mother with a child and more significantly, she lives with the fear that she could be deported without her child, at any moment. Such circumstances will continue even with the father paying the proper amount of child support and/or spousal support.
309The evidence of the father and his family is that they are prepared to be a support resource for the mother. The evidence is that the mother is welcomed to stay with paternal family members. The father offered to pay for English lessons for the mother. There is no evidence that either of these offers of assistance was made outside of the trial process. The evidence supports that the father and his family have not been a supportive presence in the mother's life since the parties separated in July 2021.
310As stated by Justice Curtis at para. 136 of her decision in O'Brien "One of the factors a court should carefully assess before limiting a custodial parent's decision to move with the child is the economic effect of its decision on the child." See also: Woodhouse v. Woodhouse, (1996), 29 R.F.L. (4th) 337, 1996 CanLII 902 (ON CA), para 38.
311The court considered all of the following circumstances:
(a) that the mother feels without stability or security in Canada given the absence of any permanent status;
(b) that the mother fears being deported without her child;
(c) that the mother feels isolated in Canada due to her inability to communicate in any language other than Polish;
(d) that the mother feels isolated in Canada due to the limited support she is entitled to and her limited ability to make friends;
(e) that the mother has a guaranteed employment prospect in Poland that is within her qualifications, is at a well-paying level and will permit her to continue her primary caregiving role to her child;
(f) that mother's employment prospects in Canada are limited given her status and language barriers; and
(g) that the mother would benefit from a wider circle of support from her family in Poland.
312The court accepts that the mother's life will be better in Poland. The mother will be able to be independent, live in a stable environment and continue to care for her child in circumstances which are not clouded by insecurity and the possibility of deportation.
313The evidence does not support that this child should be placed in the primary care of the father. I do not accept his evidence that he played an equal role in his child's life since birth. I do not accept that he is capable to assume a primary role in his child's life should the child be placed in his care. The father's evidence was detailed regarding his work obligations yet significantly lacking in his proposed plan of care should his child be placed with him.
314The evidence supports that the child should remain in the primary care of the mother. I find that removing the child from the mother’s care would have an unquestionable negative impact on this child. To have this occur as a result of the mother being deported would heighten this negative impact.
315The mother and the child need stability. Only an order permitting the relocation to Poland will bring this to the mother and the child. The need for stability, in my view, outweighs the impact of reducing contact with the father. On balance, and taking into account all the issues for consideration, including the reduction in in-person contact with the father, I find that permitting the relocation to Poland is remains a positive event for this child.
316Neither parent requested an order for joint custody.
317As stated by Curtis, J. in paragraph 25 of the decision in O’Brien:
“Joint custody is not a reflection of a parent’s love for or relationship with their child. It is a reflection of the relationship between the parents. It requires a successful, high-functioning, co-operation about the child (not a promise, but a history), a history of communication about the child (again, not a promise but a history), and mutual respect for each other as parents.”
318Although I find that the evidence does support some level of communication and co-operation between the parents, this cannot be found to be “a history” such that a joint decision arrangement is in this child’s best interests. Furthermore, the father did not present any evidence, other than the issue of the mother’s cyst and the potential impact on childbirth, that raised any concerns regarding the mother’s care of the child since the parties’ final separation.
319For these reasons, the request by the mother for sole decision-making, primary residence and an order permitting her and the child to relocate immediately to Poland is granted along with her other claims regarding the care of the child.
320The father testified that he fears that he will not see his child should the relocation request be granted. He stated that this view is based on the fact that the mother refused him to see the child until the parties' first court appearance, some four (4) months after their final separation. I find on the evidence that this is not the case.
321On the contrary, the evidence of the mother was that parenting time could not occur due to the investigation by the police and local child protection agency and when concluded the father refused her offer for parenting time as he did not agree to any level of supervision. In these circumstances, I do not find the mother's behaviour to amount to a refusal as categorized by the father.
322There is no question that a move to Poland by the child will dramatically change the kind of contact the father has with the child. The father testified that he was willing to pay for the mother's airfare to Canada should the child be placed in his care. He therefore has the financial means to travel to Poland to see the child. This would include, as the mother has testified, extended periods of time given that the child is not in school. The mother further testified that as the child ages, she is prepared to have the child travel with his/her father to Canada.
323Although a relocation to Poland will reduce the frequency of the physical contact between the father and the child, this change also opens the possibility of longer periods of time for them to spend together.
324In permitting the relocation request, the court considered the need to ensure that parents have as much contact with children as possible, consistent with their best interests, and the importance of the father maintaining a relationship to his child, especially given the young age. An order providing for parenting time including to occur virtually, will also address this and can be facilitated to ensure that this contact does not contravene the father's current release conditions.
FINANCIAL CLAIMS
Position of the Parties
325The mother claims child support, both base and section 7 expenses retroactive to the parties' date of separation, being July 8, 2021. She further claims spousal support, retroactive to the parties' date of separation.
326In advancing her claims for support, the mother seeks to impute income to the father in the amount of $89,000.00 per year This amount is significantly higher than the amount the father declared in support of the temporary order, his financial statements, or his evidence at trial.
327The father's claims before the court also include a claim for child support, base and section 7 expenses retroactive to the parties' date of separation. This claim, although not withdrawn by the father, was not pursued through his evidence at trial other than to state that the mother could return to her prior work at the cannabis farm where she was paid cash.
328Both parties acknowledge that whether or not the relocation order is granted, additional travel costs would be incurred, given the mother's possible deportation.
329During closing submissions, both counsel conceded that neither party was currently incurring any section 7 expenses for the child. Counsel jointly requested that a section 7 order be granted that any such expenses, consented to by both parties in advance, would be shared proportionate to each party's income.
330During closing submissions, counsel for both parties conceded that the mother is entitled, on the basis of non-compensatory grounds, to spousal support, regardless of whether she returns to Poland or remains in Canada.
331On the issue of duration of spousal support, counsel for the mother submitted that the support would not be paid for the duration of her life, but only to allow her to establish herself in Poland. Counsel for the father submitted that the appropriate period of duration would be one (1) year.
332On the issue of amount, counsel for the mother submitted that the amount should be mid-range. This was not opposed to by counsel for the father should the mother be in Canada, but if in Poland, submissions were that the low range is appropriate given her guaranteed employment and salary and the lower cost of living in that country.
333It is not disputed that the mother' current income is limited to the child support payment of $282.00 per month payable by the father, pursuant to the temporary order dated April 26, 2022.
334It is not disputed that the father is a stone mason and owns his own business.
335The dispute between the parties is on the issue of income level to be attributed to the father for support purposes.
LAW AND ANALYSIS – IMPUTING INCOME
336Section 19(1) of the Ontario Child Support Guidelines O Reg. 391 97,) "Guidelines" provides that a Court can impute an amount of income to a parent or spouse that it considers appropriate in the circumstances.
337Section 19(2) of the Guidelines provides that when considering imputing income where a parent or spouse has unreasonably deducted expenses from income “…the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act (Canada).”
338Section 19 of the Guidelines is not an invitation to arbitrarily impute income. There must be a rationale in determining the amount. See: Chatur v. De Los Reyes, 2012 ONCJ 367, at para. 41.
339A self-employed person or someone that solely controls his corporation has the onus of clearly demonstrating the basis for his or her net income.
340The onus falls upon the father to demonstrate that his business expenses have reasonably been deducted from his income for support purposes. See: Probst v. Shah, 2020 ONSC 1533.
341The Court should proceed with caution when the evidence is contradictory: See: Ierullo v. Ierullo, 2006 CanLII 33301 (ON CA), [2006] O.J. No. 3912 (C.A.).
342The mother submits that the father's income is far beyond what he is claiming to earn on his income tax returns and should be imputed to $89,481.60 for support purposes.
343The mother relies upon multiple routes to impute a higher income to the father, namely:
(a) The father conducts cash business for customers which he keeps in a safe and does not declare on his income tax returns;
(b) The father expenses relating to vehicles, cellular telephones, meals outside the home and other activities, including those he undertakes with the child, are being run through his business. The mother claims that some of these expenses are not business related, and a portion of these expenses should be added to the father's annual income;
(c) The father's sworn financial statement shows actual annual expenses in excess of $119,000.00, and a proposed budget for expenses of in excess of $129,000.00, both of which greatly exceed his income level;
(d) The father's lifestyle, namely the owning of two expensive vehicles, a home she estimates at a value of 1.5 million dollars, and property and land in Poland supports her position that his income is above what he declares;
(e) Inadequate disclosure provided by the father, specifically the absence of any loan applications to support how he was able to obtain financing of more than $477,000.00 on an income of $60,000.00 for his home; and
(f) She has produced at trial as Tab 16 of Exhibit 1, data retrieved from a website which concludes that the average annual income for a stone mason in the Greater Toronto Area is in excess of $89,481.60 per year
344The father has declared his current income, in his trial financial statement sworn February 18, 2022, to be $33,600.00 per year. In his testimony, the father admitted in cross-examination that he has made an average income of $50,000.00 per year for the last five (5) years.
345The father submits that his sole source of revenue is from one client, namely a major land developer in the Greater Toronto Area. He denies that he receives cash monies from this client and that he has no other clients.
346The father testified that he considers himself fortunate to own two luxury vehicles, his own home and for his business, a large piece of machinery.
347The father acknowledged that his expenses greatly exceed his income. He initially indicated that he relies on his Line of Credit and savings to cover these expenses. When presented with the evidence that his line of credit only increased by approximately $10,000.00 in an eighteen (18) month period, the father then stated that his parents assisted him financially to meet his expenses.
348In support of his position, the father filed two document briefs, which were accepted as Exhibits 5 and 6, containing financial documents. These documents were not examined in detail during the trial. However, during cross-examination, the father made the following admissions:
a) that his personal automobile, namely a 2015 Range Rover valued at $45,000.00 and truck, namely a 2015 Dodge Ram valued at $26,000.00, are not financed;
b) that his financial statement declaring his personal expenses to be between $119,000.00 and $129,000.00 per year is accurate;
c) that he has $112,000.00 in savings in his personal bank accounts; and
d) that he uses his business account to supplement his personal expenses;
e) that initially he stated that his income was between $30,000.00 and $50,000.00 for the past five (5) years. Thereafter stating that his average income for the past five (5) years was $50,000.00; and
f) stating that his income for the current year may be $60,000.00.
349I find that the father's evidence inadequately addresses many of the concerns raised by the mother. Although the father provided significant documents to support his position of his financial situation, I find that this record was incomplete and his testimony contradictory, vague and lacking detail.
350I am satisfied that the father's income cannot be limited to the amount that he has declared on his income tax returns. This conclusion is on the evidence that there are other funds available to him that should form part of his income, namely business expenses deducted by him which are attributable to him in his personal capacity.
351Although the father has provided numerous documents, his evidence has not resulted in providing sufficient evidence to determine the reasonableness of the business expenses he is claiming thereby supporting his deduction of them in his income.
352I further find that the father's evidence is completely lacking on how he is able to maintain personal expenses in the range of $119,000.00 to $129,000.00 per year on an income of $33,000.00, $50,000.00 or $60,000.00 that he has testified to.
353I find that the documentary evidence does not support the father's claims that he relies on his credit and/or depletes his savings to pay for these expenses. Furthermore, the father has not presented any evidence to support his claim that his parents assist him financially.
354Such evidence by the father entitles the Court to draw an adverse inference against him. The adverse inference that can be drawn is that his evidence does not support his position that his support obligations should be calculated at an income level of $33,000.00, which is the income level he voluntarily agreed to pay temporary support on, or $60,000.00, which he submits prospective support should be based on.
355The mother relies on a web application in support of her position that the father's income should be imputed to $89,481.60 per year. The mother did not present any evidence regarding the creation, context, sources and updating or any features of the information from this website. Therefore, this evidence is not comprehensive enough to allow me to draw any conclusions from it. I find that it cannot be found to be reliable and cannot be given much weight.
356The mother, as indicated, has provided additional evidence to support her position that the father’s income is greater than the amount he declares. This evidence includes lifestyle considerations, allegations of cash payments, and debt accumulation/ management.
357In my view, the mother has provided persuasive evidence as to the father’s lifestyle. I further find that the father has failed to provide reasonable explanations supported by sufficient evidence as to the discrepancy between his claimed income and his expenses, and the acquisition of his assets and his debts.
358I am satisfied on a balance of probabilities that income should be imputed to the father and that the mother has provided sufficient evidence as to his lifestyle spending to support imputation of income.
359In all the circumstances and on a balance of probabilities, I infer that the father has a greater ability to pay support than what he has presented to the court. I find that an imputed income to the father of $75.000,000 per year would be a fair and reasonable annual income to attribute to the father, effective July 1, 2021 and that there is a rational basis to impute this amount, supported by sufficient evidence.
360In the decision of Kinsella v. Mills, 2020 ONSC 4785, the Court stated that in the spousal support context, the ability to impute income applies equally to the payor and the recipient spouse, since one the objectives of spousal support is to promote the economic self-sufficiency of each spouse within a reasonable time, in so far as practicable See also: Juvatopolos v. Juvatopolos, 2004 CanLII 34843 (ON SC), 2004 CarswellOnt 4423, 9 R.F.L. (6th) 147 (S.C.J.), aff’d 2005 CanLII 35677 (ON CA), 2005 CarswellOnt 4774, 19 R.F.L. (6th) 76 (C.A.)).
361The Ontario Court of Appeal stated in Elmgreen v. Elmgreen, 2016 ONCA 849 that imputing income to support recipients is fair.
362Although the father did not raise a claim of imputed income to the mother for support purposes, I find that the evidence does support that the mother will be earning some income upon returning to Poland.
363The evidence regarding the mother’s income, should the relocation order be granted, is that she would earn from employment and government subsidies the sum of 2500 zloty per month. The evidence is also that she could earn additional income from selling pottery items.
364I was provided with limited evidence regarding the value of 1 Polish Zloty to the Canadian Dollar. This evidence, by the mother and not disputed by the father, was that 1 Polish Zloty, subject to the fluctuation in the conversion rate, is approximately 0.25 cents Canadian.
365After considering the totality of the evidence presented and my decision granting the relocation, I find that an imputed income of $10,000.00 Cdn per year would be a fair and reasonable income to attribute to the mother following her relocation to Poland.
LAW AND ANALYSIS – CHILD SUPPORT
366The existing arrangement between the parties since February 2022 is that the father pay child support to the mother in the amount of $282.00 per month. There is no temporary child support order granted in this matter.
367Both parties have claimed child support, both basis and contributions to section 7 expenses, retroactive to their date of separation, namely July 8, 2022, and on an ongoing basis.
368In closing submissions, counsel for both parties acknowledged that there were no section 7 expenses incurred by either party retroactively. Furthermore, on consent, the order requested for this issue be that the parties share in proportion to their respective incomes any section 7 expenses incurred for the child on consent, with such consent not to be reasonably withheld.
369The record is clear that the mother filed her Application seeking child support on November 5, 2021. Her retroactive claim is therefore for four (4) months, namely for the period between July to October 2021.
370It is not disputed that the child has been in the primary care of the mother since the parties’ separation. It is also not disputed that the parties’ reconciled for the month of December 2021 and then separated on a final basis on December 31, 2021. This period of reconciliation and further separation did not impact the child continuing to be in the mother’s primary care.
371Given these facts, the mother’s claim for retroactive child support, is limited to fourteen (14) months, namely for the period between July 8 to November 30, 2021, and January 1 to September 30, 2022.
372The father’s claim for child support is not on a retroactive basis.
373At para 5. of its decision in S. (D.B.) v. G. (S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231 “DBS”, the Supreme Court directed that courts must consider the following four factors, none of which are determinative, when addressing a claim for retroactive child support:
a) The recipient’s excuse for not seeking support sooner;
b) The payor’s conduct in relation to his or her support obligation;
c) The needs and circumstances of the child; and
d) The hardship to the payor of a retroactive award.
374The Court further directed that a holistic view of circumstances should be adopted in considering the particular facts of each case.
375The Court further made the following determinations:
a) A parent-child relationship is a fiduciary relationship of presumed dependency and the obligation of both parents to support the child arises at birth. It that sense, the entitlement to child support is “automatic” and both parents must put their child’s interests ahead of their own in negotiating and litigating child support;
b) Child support is the right of the child, not of the parent seeking support on the child’s behalf, and the basic amount of child support under the Divorce Act, (as well as many provincial child support statutes) now depends on the income of the payor and not on a highly discretionary balancing of means and needs. These aspects of child support reduce somewhat the strength of concerns about lack of notice and lack of diligence in seeking child support.
c) With respect to notice, the payor parent is or should be aware of the obligation to provide support commensurate with his or her income;
d) As for delay, the right to support is the child’s and therefore it is the child’s, not the other parent’s position that is prejudiced by lack of diligence on the part of the parent seeking child support.
See D.B.S., at paras. 36-39, 47-48, 59, 80 and 100-104.
376The issue of retroactive claims and the D.B.S. factors were further discussed by the Court in Michel v. Graydon, 2020 SCC 24. Among the many principles stated by the court, I find the following relevant to this proceeding:
a) Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. (para. 25);
b) Child support obligations arise upon a child’s birth or the separation of their parents. Retroactive awards are a recognized way to enforce such pre-existing obligations and to recover monies owed, but yet unpaid (para. 41);
c) Retroactive child support is a debt; by default, there is no reason why it should not be awarded unless there are strong reasons not to do so (para. 132);
d) The obligation to support one’s child exists irrespective of whether an action has been started by the recipient parent against the payor parent to enforce it, because child support is a continued obligation owed independently of any statute or court order (para. 79); and
e) Retroactive child support awards will commonly be appropriate where payor parents fail to disclose their increases in income. At any given point in time the payor has knowledge of what their support obligation should be, while the recipient parent may not (para. 32). Failure to disclose material information is the cancer of family law litigation (para. 33).
377The mother’s claim is an original application for retroactive support. Accordingly, the pathway described by the Court in Colucci v. Colucci, 2021 SCC 24 applies, namely:
a) The first step will be to determine the presumptive date of retroactivity;
b) The second step will be to determine if the court should depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors will guide the exercise of that discretion, as described in Michel v. Graydon, 2020 SCC 24;
c) The third step will be to quantify the proper amount of support for each year since the date of retroactivity, calculated in accordance with the guidelines.
See: L.S. v. M.A.F., 2021 ONCJ 554; M.A. v. M.E., 2021 ONCJ 555 and A.E. v. A.E., 2021 ONSC 8189.
378As indicated, the mother filed her Application on November 5, 2021.
379The father acknowledges that he did not pay any child support until February 2022.
At that time, he began to make voluntary payments in the amount of $282.00 on his self-declared annual income of $33,000.00.
380It is clear from the evidence that the father has not been forthcoming when stating his income for child support purposes. His own evidence at trial initially was:
a) that his average income was between $30,000.00 and $50,000.00 for the past five (5) years;
b) thereafter, he testified that his average income for the past five (5) years was $50,000.00; and
c) lastly, he testified that his income for 2022 may be $60,000.00.
381Closing submissions on behalf of the father did not address the claim for retroactivity. The submissions focused on the issue of income level and that the father provided fulsome disclosure regarding his finances and that the mother has failed to establish that the business expenses claimed by the father were not reasonable.
382The evidence is clear that the father was aware of his obligation to provide support to his child. The mother testified that she made requests to him following their initial separation in July 2021 and he refused to provide her with any money. The mother testified that rather than give her money, the father took the mother grocery shopping on one occasion.
383I do not find any significant delay between the date of the parties’ separation in July 2021 and the filing of the mother’s Application on November 5, 2021. I make this determination on the facts, as I have accepted in my analysis regarding relocation and care of the child, surrounding the parties’ relationship and events leading up to their separation.
384The father has provided no explanation as to why he only began to pay child support as of February 2022. Furthermore, I find that the father paid child support well below what he knew to be his income in 2022.
385For these reasons, I find that the mother’s claim for retroactive child support to July 8, 2021 should be granted.
LAW AND ANALYSIS – SPOUSAL SUPPORT
386As previously stated, the issue of the mother’s entitlement to spousal support, on a non-compensatory basis, was conceded by the father during closing submissions made by his counsel. The issue of quantum and duration however remain disputed by the father.
General Principles Regarding Quantum and Duration
387The issues of quantum and duration of spousal support must be determined taking into consideration the purposes and factors set out in sections 33(8) and (9) of the Family Law Act, RSO 1990, c F.3, which provide 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). R.S.O. 1990, c. F.3, s. 33 (8); 1999, c. 6, s. 25 (5); 2005, c. 5, s. 27 (9).
Determination of amount for support of spouses, parents
(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,
(a) the dependant’s and respondent’s current assets and means;
(b) the assets and means that the dependant and respondent are likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the respondent’s capacity to provide support;
(e) the dependant’s and respondent’s age and physical and mental health;
(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to provide support for another person;
(i) the desirability of the dependant or respondent remaining at home to care for a child;
(j) a contribution by the dependant to the realization of the respondent’s career potential;
(k) Repealed: 1997, c. 20, s. 3 (3).
(l) if the dependant is a spouse,
(i) the length of time the dependant and respondent cohabited,
(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,
(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,
(v.1) Repealed: 2005, c. 5, s. 27 (12).
(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and
(m) any other legal right of the dependant to support, other than out of public money.
388In Fisher v. Fisher, the Ontario Court of Appeal held that although the Spousal Support Advisory Guidelines “SSAG” are not legislated or binding, they are a useful tool, provided that “… the reasonableness of an award produced by the Guidelines must be balanced in light of the circumstances of the individual case, including the particular financial history of the parties during the marriage and their likely future circumstances.”
389Although not binding, counsel for the parties both referenced the SSAG in closing submissions on the issue of quantum and duration. Neither counsel submitted that this matter falls within any of the statutory and/or caselaw exceptions to the SSAG ranges.
390Based on my determination that the father should be imputed an annual income of $75,000.00 and the mother an imputed annual income of $10,000.00, a DivorceMate calculation indicates a low-range spousal support payment of $583.00; a mid-range spousal support payment of $790.00 and a high-range spousal support payment of $1,007.00 per month.
391Counsel for the mother submitted that a mid-range amount and only for a period of time of one (1) year to assist her to establish herself in Poland is appropriate in the circumstances.
392Counsel for the father agreed that if the mother remained in Canada, the mid-range of support would be appropriate. However, should she relocate to Poland, the low-range of support is appropriate given the lower costs of living and that her housing expenses would be limited given her plan to live rent-free in separate living quarters in her mother’s home. Counsel submitted that in either case, spousal support should be limited to one-year in duration given the short length of the relationship.
Retroactivity
393The mother claims spousal support to date of the parties’ initial separation, namely July 8, 2021.
394The Supreme Court of Canada, in Kerr v. Baranow, [2011] SCC 10 269 set out the following principles when considering a claim for retroactive spousal support:
a) D.B.S. factors apply as modified for spousal support (circumstances of spouse are relevant as opposed to circumstances of the child);
b) Presumptively, the date of the claim being issued is the start date for support, unless there is a reason to order otherwise;
c) The failure to bring a temporary motion should not be seen as a penalty as parties are to be encouraged to avoid the cost of bringing temporary motions’
d) Spousal support has a different legal foundation than child support. In contrast, there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse’s legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support.
e) D.B.S. emphasized the need for flexibility and a holistic view of each matter on its own merits; the same flexibility is appropriate when dealing with “retroactive” spousal support.
395The Ontario Court of Appeal summarized at para. 9 of its decision in Bremer v. Bremer, 2005 CanLII 3938 (Ont. C.A.) factors which govern an award of retroactive spousal support:
(a) The extent to which the claimant established past need and the payor’s ability to pay;
(b) The underlying basis for the support obligation;
(c) The requirement that there be a reason for awarding retroactive support;
(d) The impact of a retroactive award on the payor;
(e) The presence of blameworthy conduct on the part of the payor such as incomplete or misleading financial disclosure;
(f) Notice of an intention to seek support and negotiations to that end;
(i) Delay in proceeding and any explanation for the delay; and
(ii) The appropriateness of an order pre-dating the issuance of the application.
396I am satisfied that the evidence supports the granting of the mother’s claim for retroactive spousal support. Her need has been conceded by the father. The evidence regarding delay, impact on the father, blameworthy conduct regarding his true income, notice and appropriateness of such an order as discussed given the claim for retroactive child support apply equally to the mother’s claim for spousal support.
397In all the circumstances, I am satisfied that retroactive spousal support should be awarded commencing July 1, 2021.
Arrears and Payment
398Section 34(1) of the FLA grants the authority to the court, among other options, to require that:
a) …an amount be paid periodically, whether annually or otherwise and with for an indefinite or limited period, or until the happening of a specified event;
b) …requiring that a lump sum be paid or held in trust;…
399Given my findings of fact and the determination of income on an imputed basis to both parties, I find that the father should pay a lump sum payment of $10,000.00 for retroactive and ongoing spousal support.
400I find that this amount takes into consideration the following circumstances:
a) The parties’ relationship was of short duration;
b) The father made no spousal support payments for the period between July 1 and November 30, 2021, and from January 1, 2022, until the date of this order resulting in the mother relying on her family for financial assistance;
c) The submission on behalf of the mother is that she will require one-year of spousal support payments in order to permit her to re-establish herself in Poland. This was not contradicted by submissions on behalf of the father other than to indicate that the one-year period was appropriate regardless of the mother’s residence in Canada or Poland;
d) The mother’s financial needs will be less given her relocation to Poland and the evidence regarding her expenses;
e) A lump sum award satisfies both parties’ positions that spousal support is required in order to assist the mother in re-establishing herself on a time-specific basis;
f) A lump sum award will permit the mother to begin her pathway to self-sufficiency while she relocates to Poland and begins her employment in that country;
g) The father did present any evidence objecting to the claim for retroactive spousal support;
h) The lump sum payment is calculated on the basis of the low range, being $583.00 per month, which I find is appropriate in the circumstances and the reasons noted above;
i) Neither party lead any evidence on the issue of the loss of income tax benefit to the father if a lump sum payment was ordered. However, this amount takes into consideration this loss of benefit to the father;
j) The father has the ability to make a lump sum payment as he testified, and his trial financial statement indicates that he has $112,000.00 in savings; and
k) Given my relocation order, there is a chance that an order providing for a periodic payment will not be enforced if breached.
401Given my determination on the issue of the father’s income and that on consent, the claim for child support is limited to base child support, the father shall also pay child support to the mother in the amount of $700.00 per month commencing October 1, 2022.
402I am further satisfied that the mother’s claim for retroactive child support should be granted.
403The retroactive claim is granted for the same reasons as detailed in my analysis regarding the mother’s claim for spousal support.
404In addition, the father testified that:
a) he did not pay any child support for the period between July 8, 2021, and January 31, 2022;
b) he only paid the amount of $282.00 per month commencing February 1, 2022, on a self-declared income of $33,000.00 per year; and
c) his income was either $50,000.00 or $60,000.00 in 2021 and currently.
405The father’s evidence supports the determination that he was aware of his obligation to provide child support to the mother and consciously underpaid.
406For these reasons, the father will be required to pay the sum of $7,544.00 calculated as follows:
- child support of $700.00 per month based on an imputed income of $75,000.00 for:
o the five (5) months between July to November 2021 = $3,500.00
o for the month of December 2021 = nil (due to the parties’ reconciliation)
o for the nine (9) months between January to September 2022 = $6,300.00
o less a credit for payments of $282.00 for eight (8) months between February to September 2022 = $2,256.00.
407In summary, the father shall forthwith pay to the mother the sum of $17,544.00 in full and final satisfaction for spousal and child support arrears for the period between July 8, 2021, up to and including September 30, 2022, forthwith.
408The father did not seek a reduction in his child support should the court permit the relocation to Poland as requested by the mother. Furthermore, the father did not claim undue hardship.
409Given these circumstances, the father shall pay ongoing child support to the mother for the child in the amount of $700.00 per month commencing October 1, 2022, and every month thereafter.
ORDER
410For the reasons state above, the following is ordered:
(1) The Applicant/mother shall have sole-decision making authority and primary residence of the child, K.M., born XX/XX/XX19;
(2) The mother may relocate immediately with the child to Poland;
(3) The mother shall provide the father with all information regarding the child's school enrolment, medical/dental professionals, daycare arrangements (if applicable) and enrolment in extracurricular activities;
(4) The mother shall be authorized to apply for, renew and maintain in her possession with the consent of the father Canadian and/or Polish government-issues identification for the child;
(5) The mother’s claim for life insurance and/or medical dental insurance are dismissed given the absence of any evidence that such coverage exists; and the limitations of section 34(2) FLA;
(6) The mother’s claim for a restraining order is dismissed given the absence of any evidence to support this claim;
(7) The father's claim for sole decision-making and primary residence of the child are dismissed;
(8) The father’s claim for parenting time for the mother is dismissed;
(9) The father shall have parenting time as follows:
(i) Until such time as the mother and child leave Canada, the current parenting schedule of every second weekend from Friday to Sunday and every Wednesday from 3:00 to 8:00 p.m. shall continue;
(ii) In addition to i) above, the father shall have an additional five (5) hour visit to occur no later than 48 hours prior to the child's departure from Canada;
(iii) Any other times agreed to by the parties with the father travelling to Poland;
(iv) Any other times agreed to by the parties when the child reaches the age of seven (7) to include periods of time in Canada. The initial period of time should be no more than three (3) weeks so allow the child to transition to this longer period with her father. Thereafter, the parties are to consider longer periods of time which will allow for a meaningful period of time during the holiday periods, summer and otherwise, for the father and child;
(v) The father shall be required to travel to pick up and return the child until such time as he/she may travel as an unaccompanied minor unless agreed to otherwise by the parties;
(vi) The child can contact the child electronically, through programs such as Skype, FaceTime, Messenger our other appropriate video application, three (3) times per week, at times to be agreed to by the parents, considering the child's schedule, the six (6) hour difference between Mississauga and Stare Guty and the father's current promise to appear conditions in his criminal proceeding; and
(vii) The father may call the child daily should he wish to do so. The child, when reaching an appropriate age, may call the father whenever he/she wishes, and the mother will facilitate this contact.
(10) Both parents may travel with the child outside their home countries without the consent of the other parent. Each parent shall provide the other with a complete itinerary and contact information for the child;
(11) Effective October 1, 2022, the father shall pay to the mother table child support in the amount of $700.00 and thereafter on the first day of every following month. This amount is based on the Guidelines tables for a parent earning $75,000;
(12) On consent, the parties shall share proportionate to their respective incomes, any section 7 expenses for the child, which are consented to in advance. This consent shall not be unreasonably withheld by either parent;
(13) The father shall produce to the mother every year by July 1, starting in 2023, copies of his Income Tax Returns and Notices of Assessment and additional disclosure pursuant to section 24.1 of the Child Support Guidelines;
(14) The mother shall produce to the father every year by July 1, starting in 2023, the equivalent income tax documents she files annually in Poland;
(15) The father shall pay to the mother the sum of $17,544.00 forthwith. This amount is for arrears of child and spousal support for the period of July 2021 up to and including September 2022 (excluding December 2021) and a lump sum payment of prospective spousal support;
(16) The father’s claim for base child support is dismissed;
(17) All temporary orders are vacated;
(18) Any claims raised in the Application filed November 5, 2021, the Answer filed March 28, 2022 and the Reply filed March 30, 2022 not dealt with in this order are withdrawn; and
(19) A Support Deduction order is to issue.
Costs
411At the conclusion of closing submissions, counsel for the mother advised that his retainer required him to seek costs. Counsel for the father submitted that costs would not be sought on behalf of his client.
412Given the central issue in this matter, the Court is not inclined to consider an award of costs. Even so, if either party wishes to claim costs, the following directions shall apply:
(a) The party seeking costs shall deliver their submissions, limited to five (5) pages double-spaced excluding a Bill of Costs and any Offers to Settle by October 7, 2022;
(b) The responding party shall deliver their submissions, limited to five (5) pages double-spaced excluding a Bill of Costs and any Offers to Settle by October 28, 2022;
(c) Reply, if any and limited to two (2) pages double-spaced to be delivered by November 14, 2022;
(d) All submissions can be forwarded electronically to my judicial assistant.
Released: September 20, 2022
Justice Lise S. Parent
