T.D.S. v. J.M., 2023 ONCJ 407

Ontario Court of Justice

Date: September 20, 2023 Court File No.: Brampton 552/19

BETWEEN:

T.D.S. Applicant

— AND —

J.M. Respondent

Before: Justice A.W.J. Sullivan

Heard on: August 18 to 20, 2023 Reasons for Judgment released on: September 20, 2023

Counsel: Ms. E. Adams-Idode, for the applicant Mr. J.M., on his own behalf

SULLIVAN, J

1This is the decision from a trial held Aug 18 to 20 between the parents of the two children OM born 2016 in grade 2 in a French immersion program and CM born 2017 to commence grade one in Sept 2023. Both attend the same school.

2The issues for trial are decision-making, primary residence, parenting time and child support arrears and ongoing. A collateral issue applying for the children’s passports and international travel.

Background facts:

3The applicant mother, Ms. D.S. is 34 years old and whose family has a Brazilian heritage and her parents have returned to live in Brazil after having raised a family here.

4The father is 36 years old. Mr. J.M. has an English and Metis heritage with roots in Manitoba and family within the Metis nation in Manitoba. Father does not have official Metis status.

5Mr. J.M. works as a roofer in new builds on unionized sites. He did operate his own roofing company while the parties were married and for a while thereafter.

6The parties started dating in 2013 and moved in together and married on Nov 6, 2015.

7They separated on Dec 27, 2018, after an incident in which Ms. D.S. accused Mr. J.M. of slapping her to her face with a piece of pizza at dinner at their apartment.

8Mr. J.M. was charged with assault to Ms. D.S., mischief in breaking their television and theft of Ms. D.S.’s cell phone.

9The charges of assault, mischief and theft were withdrawn on March 29, 2019.

10He was also charged in with 2 breaches of a no-contact order and plead guilty to contacting Ms. D.S. and received a suspended sentence and 2 years’ probation which was completed successfully in June of 2023. There were no breaches of the probation order.

11At trial I received documentation regarding the 1st breach but not the second.

12Apparently within the sentence for the second there existed a no-contact order between the parties and for Mr. J.M. not to be at locations where Ms. D.S. would be or might be. This ended in June of this year. I will return to this later in this decision.

13From the date of separation in December 2018 the children have had their primary residence with their mother and orders for parenting time and support have progressed.

14At the time of this trial the applicant and the children reside in Toronto as does the father with his new partner.

Main evidence of Ms. D.S.

15Ms. D.S. presented an Affidavit exhibit 9 in the trial with the bulk of her evidence and supplemented her evidence with testimony directly at trial and was questioned on this by Ms. J.M.

16Ms. D.S. testified that she was young, 26 years old, when she married and had the 2 children back-to-back. She remembers being afraid and completely dependent on Mr. D.S. with no money or home other than what she received from Mr. J.M.

17She testified that during their 3-year marriage she did most of the childcare for the children as Mr. J.M. worked full time as a roofer running his own company.

18She described the relationship as one dominated by violence both physical and emotional. She recounted threats to harm her, choke holds, slaps, forced sex and destruction of her clothes by ripping at them.

19Ms. D.S. recalls arguments over minor events at home after Mr. J.M. returned home with complaints about her care of the children and the home. She stated that when Mr. J.M. was anger, he would yell at her, hit her and he destroyed 2 TV’s, an iPad and a cell phone.

20In Dec 2018 after an argument and an assault she called the police and Mr. J.M. was charged as reviewed above.

21Ms. D.S. testified that in 2019 despite the condition of no contact between them imposed on Mr. J.M. as a release condition that he breached this order calling her threatening to kill any man she may be with and demanding to see the children on his own terms.

22She stated that she wanted Mr. J.M. to see the children but in an organized manner and in a safe manner for all without conflict. This created problems as she recalls he refused.

23Ms. D.S. recalled that in May 2019 Mr. J.M. showed up at her home demanding to see the children and left when she informed him that she was calling the police regarding his breach of conditions.

24She recalls on May 29, 2019 asking that the no contact conditions be lifted in order to permit parenting time. This was reinstated on her request in late August 2019 due to ongoing conflict some of which is explained below.

25These no-contact orders were not provided to me in this trial with the release conditions in-order-to assess whether the conditions permitted parenting time pursuant to a family court order.

26Ms. D.S. testified that to facilitate parenting time in June 2019 she drove the children to the parking lot outside of Mr. J.M.’s building for exchanges.

27Ms. D.S. testified that there were problems with parenting time with Mr. J.M. insistence in parenting time as he wished with conflict in July, August and September 2019 with Mr. J.M. switching times and on 1 occasion, September 10, 2019, there was a struggle in a parking lot in which Mr. J.M. took their eldest child and left. He returned her later that day or the next.

28Ms. D.S. testified that eventually because of Mr. J.M. constant phones calls and demands she reinstated the no-contact order due to the above difficulties and Mr. J.M. was charged with a second breach of this no-contact order.

29Parenting time was eventually reinstated via a private supervised service, Brayden, paid for by Mr. J.M.

309 visited occurred via Brayden then this stopped as Mr. J.M. could not afford payments. No visits took place from May to October 2020 and in November 2020 an unsupervised schedule commenced with Saturday day visits and an evening one day per week with exchanges happening at the Yorkdale mall.

31The above parenting schedule was expanded in October 2022 to alternate weekends Friday evening exchanges at Sherway Gardens Mall to Monday drop off at the children’s school. The children since separation in Dec 2018 have resided with Ms. DS and she has provided for their every need. This is the status quo at trial.

32Ms. D.S. did advise the court that this past spring the parties have arranged between themselves a week about parenting schedule for the summer 2023 that commenced in July 2023.

33When questioned she agreed that the children love their father, but she added that he has been violent to her that the children witnessed and that this harm them emotionally.

34Ms. D.S. did admit when questioned to arguing with Mr. J.M. on a return vacation from Newfoundland. The incident occurred in their car while driving over a bridge outside Montreal. Mr. J.M. wanted to stop at the casino in Montreal and she disagreed. She agreed that she threw his wallet out of the moving car to prevent him from going to the casino. She denied being violent with him on this occasion or at other times.

35When questioned about her care for the children Ms. D.S. did admit to having at times family members or neighbours care for the children and on one occasion needed assistance for the children to be picked up at school. She disagreed that she forgot to do so but rather she was ill and overslept having taken flu medication and stated that when the school called both parents, she had her sister pick them up.

36She explained that she does all the care for the children and on occasion she has other members of her support network assist in looking after the children, such as when she has found some sporadic work, small gigs cleaning or at Data Text events.

37Ms. D.S. when questioned disagreed with Mr. J.M. that she has made it difficult to see the children. She testified that overall, there has been difficulties with their communication and often Mr. J.M. did not follow a schedule that she proposed. She stated at the start of their separation in 2019 it was particularly strained with Mr. J.M. demanding to see the children when it suited him and communicating with her contrary to no contact orders.

38Ms. D.S. did admit that recently the parties have made arrangements and communicated to rearrange parenting time. A few examples of this cooperation was their arranging, without court or counsel involvement, was Mother’s Day and the summer week about schedule.

39Ms. D.S. agreed that that Mr. J.M. arranged for the children to be with her for Mother’s Day 2023 which was his weekend and that the week about has been going well as well as the exchanges.

40Ms. D.S. agreed when questioned that she had agreed with Mr. J.M. that the children were to be with him this year for Father’s Day but that she could not drive them from where she was as she had no money for gas nor other means in which to have the children transported to him and that they did not spend time with him on this day for that reason.

41During questioning of Ms. D.S. by Mr. J.M., she admitted that there has been discussion to change parenting time in the near future. This is to accommodate an event that the children wish to participate in at their church which they attend weekly with Ms. D.S.

42In this questioning, it appeared, that such amendments re parenting time has happened around some of the children’s events and that on occasion the children are involved in this process with information sharing or conversations that at times involve them between the parents.

43Ms. D.S. testified that when it comes to Mr. J.M. living up to his child support obligation it has been sporadic. She testified that he has not paid on time or the proper amounts. FRO has not as yet contact the family nor is there a file that she is aware.

44Regarding child support I was informed and provided with a temporary order dated Feb 9, 2022, in which Mr. J.M. was ordered to pay $916.00 per month based on an annual salary of $60,039 – imputed.

45On this issue the parties did not obtain or file a FRO director's statement. I was informed that FRO is not yet enforcing this Temp order despite an SDO being sent to FRO and the Temp order being issued?

46Apparently, Mr. J.M. e-transfers to Ms. D.S. and she entered into evidence the total amounts paid to date based on the order.

47Ms. D.S. is seeking to impute income to Mr. J.M. at $60,039.00 and requests support backdated to January 1, 2019. When Mr. J.M. testified, he agreed that this was a reasonable amount to set his annual income but disagreed to backdating to January 1, 2019.

48Ms. D.S. in her affidavit evidence stated that since January 1, 2019 Mr. J.M. provided to her child support as follows:

2019 - $5100.00 2020 - $920.00 2021 - $3850.00 2022 - $2330.00 2023 - $1850 to April 1, 2023

49She provided as an attachment to her affidavit evidence of some email transfers from Mr. J.M. but when calculated they are less than the amounts testified to above.

50Ms. D.S. agreed that Mr. J.M. recently enrolled and is paying for the children to attend gymnastics ad that he is bringing the children to this event. This she testified was something that she has been seeking for a number of years and has only just happened which she is pleased with.

51With regards to major holiday sharing, she agreed that having the children with her on Christmas Eve to Christmas Day at noon after which they would go to their fathers over to Boxing Day. Ms. D.S. also agree to the summer week about schedule that the parties put in place this past summer.

52Ms. D.S. testified that she is also looking for an order to be able to travel with the children to Brazil to visit with her parents and obtain the children’s passport. She admitted that Mr. J.M. has not necessarily refused a request re the children’s passport, but she fears he will make this difficult as he does not want the children to travel to Brazil believing it to be dangerous and unsafe.

Mr. J.M.’s main evidence:

53Mr. J.M. testified that since separation to now he has found this court process difficult.

54He said that he wishes to play an equal part in the lives of his daughters, in their care and needs such as their education and health requirements.

55He testified that he now realizes that after their separation in late 2018 to mid-2019 that he made mistakes and that he was fixated on getting his family back. He has since learned that he needs to move past this loss and just work on being there for his children. He stated that his current common-law spouse has assisted him in this process.

56He admitted to being in the wrong, although he did not admit to the violent acts described by Ms. D.S. in her testimony. He felt that Ms. D.S. testimony did not “illuminate” the reality in their relationship and that they both argued equally. He accepts that he was responsible for 50% of the difficulties.

57He testified that he felt the court process made things more difficult than necessary as he testified that just after their separation, he was seeing his children half the time when he was renting a small apartment near High Park in Toronto on High Park Ave.

58He testified that he feels Ms. D.S. used the criminal justice system to charge him to gain control of the children when things were OK after the separation.

59He recalled that with the separation and his arrest in January 2019 he lost his roofing business for about most of that year and lived off $20,000 savings from RRSPs from which he recalls paying some child support as well.

60He then began working for Trudel and Sons, roofing new built homes and his work is on unionized sites through Local 27. He recalled in 2019 hurting his back and for a while he was not working and stepped away from roofing until his return full time which he has been doing from about 2022 to present.

61He consented at trial with Ms. D.S.’s position that it would be fair to set is annual income for child support purposes to be $60,039.00. He did not agree, however, that this should be the case to January 1, 2019 for the reasons provided above.

62When asked to describe his daughters, he became emotional. He recalls how when O, his first daughter was born, he was working hard “killing it at work”. He recalls how she held her bottle within her first week of birth and he would feed her when he returned from work. He stated that both his children clung to him. He recalls thinking that he could not love someone so much as his 1st child then had the same feeling for C his second when she was born and that this feeling surprised him.

63He recalls after their births assisting in the middle of the night feeding them and assisting with diaper changes although Ms. D.S. when questioned about this did not recall his assistance as he described it.

64He described enjoying playing with his daughters in their back yard before separation, playing in the garden, weeding and that he built a pond with them spraying water with a hose and on other occasions playing his guitar and singing to them.

65He described now during his parenting time how they typically go for bike rides in local parks, the beach and some camping trips. He described helping his daughters with basic numbers, colours and literacy, learning words.

66He described helping his daughter C adjust her pronunciation from baby talk to better pronunciation. He arranged with his current spouse to have the girls registered in gymnastics and brings them to this activity on Wednesday and pays for this.

67He drops the children off at their school and is known to the school staff. He admitted that he has not had much contact with the teachers but wished to do this more in the future.

68Mr. J.M. testified that at one point he was visiting the children at their school, and this was during the no-contact order and apparently with the knowledge of Ms. D.S.

69In terms of caring for the children’s medical and dental needs he has done so as follows.

70Mr. J.M. testified that he realized the children's teeth needed care and he arranged and brought the children to a dentist to repair fillings and cavities that a previous dentist had worked on. This was paid for through his workplace benefits.

71He recalled bring his daughter C to St Joseph in Toronto to have an ear infection treated and had administered antibiotics. C has had recurring ear blockages that have needed treatment. He noted this not in a critical manner but just that he is aware of this and has handled these matters in the general care he has provided to his children.

72He testified that he communicated with Ms. D.S. about the above and received no objection from her in doing so. He admitted to not taking the children to their family Doctor but would be willing to do this in the future.

73He agreed when questioned that he was good with the decisions made by Ms. D.S. in registering his daughters in their current public school in North York. He has some reservations about his oldest daughter being enrolled in French emersions but noted that she seems to enjoy this. He testified that neither he nor Ms. D.S. speak French.

74He agreed that there was little disagreement between the parties over religious issues and that although he was not Christian, he was OK with the children attending the church that they do with their mother. He noted he would wish to introduce the children to his Metis heritage as he grows into this himself and that he attends events at a local friendship centre in the west end of Toronto.

75He noted that he would like to be able to care for his daughter's half of the time in a shared arrangement but agreed that with their current school being in the north of Toronto and his residence being in the southwest he could not get them to school in the mornings without difficulties and in addition he works early and often out of Toronto on housing projects.

76Mr. J.M. agreed when questioned that Ms. D.S. has made good choices for the most part for the children, re their health and education since their separation. He agreed that he had little contact recently with the children’s doctor.

77He disagreed that when he brought the children to the dentist that he did not advise their mother or that the dentist does not have Ms. D.S.’s contact information. He noted that he recently received an email that Ms. D.S. was copied on reminding of upcoming cleaning appointments for the children. He recalled when he arranged the dentist appointments texting the information to Ms. D.S.

78He admitted to accepting 50% of the responsibility for arguments before separation and recalled having to block Ms. D.S. from striking him on 2 occasions one while driving back from a vacation in Newfoundland. He agreed that he had argued and said things to Ms. D.S. that were hurtful and said in the presence of the children that is harmful to them.

79He denied that he hit Ms. D.S. with a pizza slice in December 2018 but agreed that they argued as he was upset to find her passed out with a poured glass of wine and the children playing on their own.

80Mr. J.M. throughout his testimony and when questioned was clear that despite the no contact conditions that are part of the probation order that the parties have routinely communicated about the children parenting schedule and needs. He described how with Ms. D.S. knowledge he was for a while visiting the children for lunch at their school arranged with the administration or how his parenting schedule is adjusted via text between the parties including arranging the week about summer schedule for this year was done between them both.

Legal considerations for parenting orders:

Statutory considerations:

81Subsection 24(2) of the Children’s Law Reform Act (the Act) provides that the court must give primary consideration to the child’s physical, emotional, and psychological safety, security and well-being in determining best interests.

82Subsection 24(3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child. It reads as follows:

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.

(k) The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(l) The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child, and

(m) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

83Subsection 24(4) of the Act sets out factors relating to family violence. It reads as follows:

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.

84Subsections 18 (1) and (2) of the Act defines family violence as follows:

(1)“Family violence” means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct; (“violence familiale”) “Family violence”

(2) 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.

(h) Threats to kill or harm an animal or damage property; and 6

(i) the killing or harming of an animal or the damaging of property.

(i) The killing or harming of an animal or the damaging of property.

85Subsection 24(6) of the Act states that 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.

86Section 28 of the Act sets out the types of parenting orders the court can make. Subsection 33.1(2) of the Act addresses the importance of the parties’ protecting children from conflict. It reads as follows:

33.1 Protection of children from conflict (2) A party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding.

Best interests

87The list of best interests’ considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.

88An assessment of the best interests of the child must take into account all of the relevant circumstances with respect to the needs of the child and the ability of each parent to meet those needs. See: Mokhov v. Ratayeva, 2021 ONSC 5454 (SCJ).

89The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. See: Gordon v. Goertz, 1996 SCC 191. Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child. See: Young v. Young, 1993 SCC 34; E.M.B. v. M.F.B., 2021 ONSC 4264; Dayboll v. Binag, 2022 ONSC 6510.

90A party’s failure to protect a child from conflict may be an important consideration in granting primary residence or decision-making responsibility to the other parent. See: Dayboll v. Binag, 2022 ONSC 6510.

Family violence

91The Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22 recently made the following observations about family violence: 1. The recent amendments to the Divorce Act recognize that findings of family violence are a 2023 ONCJ 102 7 critical considerations in the best interest’s analysis (par. 146). 2. The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497. (par. 145). 3. Domestic violence allegations are notoriously difficult to prove. Family violence often takes place behind closed doors and may lack corroborating evidence. Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support (par. 145).

92Justice Deborah Chappel wrote about the importance of family violence as a best interests factor in paragraph 86 of McBennett v. Danis, 2021 ONSC 3610, as follows: The broad definition of family violence and the specific inclusion of this factor as a mandatory consideration in determining the best interests of children recognize the profound effects that all forms of family violence can have on children. These consequences can be both direct, if a child is exposed to the family violence, or indirect, if the victimized parent’s physical, emotional, and psychological well-being are compromised, since these consequences in turn often negatively impact their ability to meet the child’s physical and emotional needs.

93In cases of family violence, particularly spousal violence, it is crucial that the court consider whether a cooperative parenting arrangement is appropriate. A victim of family violence might be unable to co-parent due to the trauma they have experienced or ongoing fear of the perpetrator. In addition, cooperative arrangements may lead to opportunities for further family violence. See: Bell v. Reinhardt, 2021 ONSC 3353.

94Family violence can be insidious. It can take many forms, and frequently involves coercive and controlling behaviours which are usually very difficult to prove because they often take place in private. Abusers, especially those of the coercive and controlling kind, are often skilled manipulators; they can be charming, they can be convincing liars, and they can be very persuasive. Victims of family violence are often the only witnesses who can attest to their abuser’s behaviour and unfortunately, they are sometimes not believed because of their inability to support their allegations with objective third party evidence. See: Volgemut v. Decristoforo, 2021 ONSC 7382.

95Failure to speak out earlier and inconsistent evidence is common for victims of domestic violence. See: A.E. v. A.B., 2021 ONSC 7302; N.M. v. S.M., 2022 ONCJ 482.

96The court is also very aware that family violence is sometimes difficult for the victim to prove. It is often not reported. There may be many reasons for this. There will often be no medical, police or Children’s Aid Society reports to corroborate allegations of family violence. Victims sometimes minimize and rationalize the abuse. The family violence can take place in private so that there are no witnesses. Control and coercion can be subtle and only evident to the victim. See: Wiafe v. Aboakwa-Yeboah, 2021 ONCJ 201.

97Denigrating your spouse in front of the children fits within the definition of family violence. See: Ammar v. Smith, 2021 ONSC 3204; McIntosh v Baker, 2022 ONSC 4235.

98In N.M. v. S.M., 2022 ONCJ 482, supra, the court found that the father had financially abused the mother. He had the ability to pay her generous support and intentionally paid her very little support to control her and to make her life difficult.

Joint decision-making responsibility

99The Ontario Court of Appeal in Kaplanis v. Kaplanis, 2005 ONCA 1625, [2005] O.J. No. 275 sets out the following principles in determining whether a joint decision-making responsibility order (formerly a joint custody order) is appropriate:

1. There must be evidence of historical communication between the parents and appropriate communication between them.
2. It can’t be ordered in the hope that it will improve their communication.
3. Just because both parents are fit does not mean that joint custody should be ordered.
4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise, they must be able to be addressed on an ongoing basis.
6. The younger the child, the more important communication is.

100Mutual trust and respect are basic elements for a joint decision-making responsibility order to work effectively. See: G.T.C. v. S.M.G., 2020 ONCJ 511; T.P. v. A.E., 2021 ONSC 6022; Shokoufimogiman v. Bozorgi, 2022 ONSC 5057; Jacobs and Coulombe v. Blair and Amyotte, 2022 ONSC 3159.

101Financially supporting one’s children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint decision-making responsibility order as it demonstrates poor judgment and an inability to prioritize the child’s interests. See: Jama v. Mohamed, 2015 ONCJ 619; T.P. v. A.E., 2021 ONSC 6022; McBennett v Danis, 2021 ONSC 3610; J.T. v. E.J., 2022 ONSC 4956; Shokoufimogiman v. Bozorgi, 2022 ONSC 5057.

102Courts will order joint custody rather than sole custody where such an order is considered necessary to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents, but one party has been primarily responsible for the conflict between the parties. See: Roloson v. Clyde, 2017 ONSC 3642, par. 59 for a review of these cases.

103Ultimately, the court must determine if a joint decision-making responsibility order, or a 2023 ONCJ 102 9 orders allocating any decision-making responsibility between the parties, is in the children’s best interests. The court also has the option, if it is in the children’s best interests, to leave some or all aspects of decision-making responsibility silent. See: M. v. F., 2015 ONCA 277

Parenting Time

104A starting point to assess a child’s best interests when making a parenting order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making a parenting time order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615; J.N. v. A.S., 2020 ONSC 5292; A.L.M. v. V.L.S., 2020 ONCJ 502; M.R.-J. v. K.J., 2020 ONCJ 305; Abbas v. Downey, 2020 ONCJ 283; N.D. v. R.K., 2020 ONCJ 266.

105The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being. Moreover, the child has a right to have contact with both parents. See: Klymenko v. Klymenko, 2020 ONSC 5451.

106The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See: M. A. v. J.D., 2003 ONCJ 52807, [2003] O.J. No. 2946 (OCJ); Dayboll v. Biyag, 2022 ONSC 6510.

Underemployment -

107Section 19 provides that the court may impute to a spouse “such amount of income … as it considers appropriate” and provides a non-exhaustive list of such circumstances. The relevant portions of s. 19 read as follows:

19.(1) Imputing Income – The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include,

(a) The spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the spouse.

(b) The spouse’s property is not reasonably utilized to generate income.

(c) The spouse has failed to provide income information when under a legal obligation to do so.

(d) The spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax.

Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. Clause 19(1)(a) of the guidelines is perceived as being a test of reasonableness. See Drygala v. Pauli, 2002 ONCA 41868, [2002] O.J. No. 3731(Ont. CA).

108The Ontario Court of Appeal in Drygala v. Pauli, 2002 ONCA 41868 set out the following three questions which should be answered by a court in considering a request to impute income:

1. Is the party intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
3. If not, what income is appropriately imputed?

109The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.). However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.

110Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. See Filippetto v. Timpano, 2008 ONSC 3962, [2008] O.J. No. 417, (Ont. S.C.).

111The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.

112Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, 2003 ONCA 3433, at paragraph 23. It must be reasoned, thoughtful and highly practical: See: Hagner v. Hawkins, 2005 ONSC 43294, (Ont. S.C.) at paragraph 19. As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, 2000 ONSC 22560, [2000] O.J. No. 453, (Ont. Fam. Ct.).

113The third question in Drygala v. Pauli, 2002 ONCA 41868, supra, is: “If there is no reasonable excuse for the payor’s under-employment, what income should properly be imputed in the circumstances?” The court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson, 2006 ONCA 26573.

Adverse Inference

114The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines and impute income. See Smith v. Pellegrini, 2008 ONSC 46927, [2008] O.J. No. 3616, (Ont. S.C.); Maimone v. Maimone, 2009 ONSC 25981, [2009] O.J. No. 2140, (Ont. S.C.).

Discussion and Decision

115In this trial I received evidence that there existed violence at different points throughout the relationship and in December 2018 towards the end of the relationship leading to Mr. J.M. being charged with assault and property offences.

116Ms. D.S. was clear in her testimony of the fear she felt and isolation during the relationship having two young children back-to-back at the age of 18 and dependent on Mr. J.M. for a home and money.

117Ms. D.S. stated that when they separated Mr. J.M. was insistent on seeing the children when he wanted and that he ignored her attempts to arrange visitation.

118Ms. D.S. testified that she always wanted the children to see their father but without conflict between them both. The evidence is that she requested that an initial no contact order be removed to facilitate visits.

119This proved unsuccessful with Mr. J.M. continuing to come to her place, calling repeatedly and at least once he kept one child contrary to their agreements and that this prompted her to reinstate the no-contact order which was breached in 2019 and led to the above probation order against Mr. J.M. in March 2019.

120I was provided documentation pertaining to the 3 charges that Mr. J.M. faced, from a December 2018 event at their home. These charges were eventually withdrawn.

121Mr. J.M. admitted to breaching the no contact orders and received a suspended sentence with a 2-year probation order and conditions including, I was informed, of no contact term between the parties.

122All agreed that this probation order ended in June 2023 and was complied with by Mr. J.M. I received no evidence of other criminal charges or convictions since.

123Mr. J.M. when questioned accepted that he was 50% wrong in the relationship and that the children were exposed to the parties’ arguments which were harmful to them.

124He testified that they both argued equally between themselves and were verbally abusive to one another and that Ms. D.S. did strike him at least on two occasions.

125He also stated that he recognizes now how he was wrong in thinking that he could reverse Ms. D.S.’s decision to separate, and he believed at the time that somehow, he could “get his family back”.

126He admitted to pushing ahead given his feelings and ignored requests by Ms. D.S. to arrange a parenting time schedule rather than when he liked. He testified that he has been helped by his current common-law spouse to better understand his actions and understand how he was doing things wrong and that he needed to approach things differently.

127He admitted from the filed text messages from 2019 that he claimed not to remember incidents of violence and suggested he may have “blacked out” and asked for another chance.

128Mr. J.M. when questioned was reluctant to agree that Ms. D.S. has been always willing to arrange parenting time for the children with him.

129He testified that he believes that Ms. D.S. initially used the criminal justice system to gain advantage over the children.

130He testified that he felt this family court process made things more complicated than needed to be and that Ms. D.S. often asks to change the parenting schedule or does not follow through. An example of this that he gave was Father’s Day this year or fixing any further time but for the recent agreement for every other weekend and this summer’s (2023) week about schedule that just occurred after 4 years in litigation.

131I find that in considering the evidence presented that in the past 4 years, from March 2019, there have been no incidents of family violence as there was at the start of the separation and that despite the submissions made on behalf of Ms. D.S. in this trial the landscape in the relationship between the parties has changed for the betterment of their children.

132I heard that although the probation order ended just recently, June 2023, the parties have been communicating during the course of that order to rearrange parenting time - summer parenting time to week about, some of the medical needs of the children and extracurricular activities, gymnastics.

133I also heard evidence that went uncontested that Ms. D.S. asked to meet with Mr. JM’s common-law spouse as she plays a role in caring for the children. Mr. J.M. testified that when he received this request from Ms. D.S. that a meeting took place at his apartment on the Lakeshore in Toronto and that Ms. D.S. attended and all was civil.

134This last piece of information was a surprise to counsel for Ms. D.S., as the question put to Mr. J.M. in cross-examination was that he had denied this request.

135I underline the above as it was apparent that the main closing argument on Ms. D.S.’s behalf is that I should find Mr. JM not to be a credible witness and that the level of family violence and control by Mr. J.M. towards Ms. D.S. dictates that I make an order that Ms. D.S. has decision-making for the children.

136It was put to me in closing … “that this case is not about whether each parent loves their children, that was conceded, but rather that domestic violence makes participation in decision-making for the children impossible today and that the court should not believe all is well and let’s move on.

137I see this family’s current situation as more nuanced.

138I accept that Ms. D.S. was the subject of violence in her relationship with Mr. J.M. I heard and accept, how she feared her situation and felt alone and isolated. From what I was told I surmise that her relationship with her immediate family was not strong while in the relationship with Mr. J.M. as she did testify to having reconnecting with the church that her father assisted in founding in Toronto that she now attends with her children.

139I accept that she has to some subjective fear today and that time does not entirely diminish her subjective feelings and what she experienced.

140I am required, however, to weigh this with other evidence of an evolving relationship between the parties for the interests of the children such as:

• No reported acts of violence, manipulation or coercion from March 2019 to present.
• No evidence that the historical family violence has impacted the children’s behaviour or impacted the mother’s ability to meet the children’s needs.
• No abusive communication in the form of text or email that puts Ms. D.S. down or is abusive.
• No police or CAS involvement.
• No further criminal charges against Mr. JM involving any person and Ms. D.S.
• There have been positive communication between the parties that have expanded parenting to week about this summer, and the adjusting of some parenting time.
• The father is now dropping the children off at school in the mornings on Mondays of his weekend parenting time and is developing a working relationship with the children’s school.
• The father is bringing the children to attend to their dental needs and on occasion to the hospital as required.
• The father registering the children in gymnastics, paying for this, and bringing the children to this program.

141I also find that Mr. J.M. participated fully in this trial and was fair and balanced in his questions to Ms. D.S. He did not attempt to use the trial to argue with her in a degrading fashion. He directly questions asked of him and was not argumentative nor did he attempt to avoid answering questions that shed some light on his behaviour. He gave details of his activities with the children and his hopes for their future.

142Examples of this are:

• He admitted to on at least one occasion this past year having the children miss school one Monday morning while he took them to a job site to receive a shipment of roofing materials and informed the school that they were sick when they were not. He agreed that he did not inform Ms. D.S. of this until after the children had missed school.
• That his partner on occasion this summer brought the children to offices that she cleans during the day.
• His admitted that he made mistakes during the relationship and when the parties initially separated.
• That he has not pay child support at the level ordered nor the cost award for $1600.00

143The above evidence I find assists me in better understanding the risk level of family violence in this family. I find the risk factor to have changed and has diminished significantly.

144I am not saying that there is no concern in this regard as Mr. J.M. has not attended any counselling sessions regarding his behaviour during the relationship. However, I did find that when he testified, he was somewhat reflective of his actions during the relationship and directly after the separation and the need to change.

145I find that there needs to be a clearer decision-making process for the children’s educational and medical needs as presently this tends to be passive communication between them both.

146Presently Ms. DS looks after the children’s medical appointments through a family Dr. with Mr. JM bring the children as required to a hospital when needed as well as arranging dental care for them.

147Neither party had overt complaints about the others care in this regard. From the evidence provided the children are overall healthy but did need their dental hygiene attended to, which took place with no difficulties between the parties.

148What needs to develop is better info sharing between the parties about treatment needs as directed by the doctors, future appointment dates and, of course, providing to the children any medicine prescribed by the doctors should travel between each household as required.

149I find that Ms. D.S. can continue to arrange family Doctor appointments and Mr. J.M. can arrange the children's dental care.

150Each should continue to make the day-to-day decisions while the children are with them to ensure the children are cared for with a provision that any serious medical decision shall be made jointly.

151The children’s school was arranged by Ms. D.S., and she has a good relationship with the school which forms part of her care team for the children.

152Mr. J.M. stated he was fine with the school choice and has a working relationship with the school. He testified that he is interested in helping his daughters with learning numeracy and reading skills. There is no difference between the parties regarding the children’s educational plans.

153Both parents' backgrounds, their heritage and cultural being Brazilian and Metis will be important for the children to understand appreciate who they are and how this background will assist them interpret and navigate the world around them.

154There are no reported difficulties for the children academically or socially at school. Given this and the parents backgrounds I find that it will be important that each play a role in the children’s education equally.

155As for the children’s religion neither objected to the other’s faith or spiritual beliefs being shared and introduced to the children and each will have, the right to do this in the order below.

156I find that these facts support a sharing of some aspects of decision-making between the parents and I will set this out in the order below. I am mindful in making such an order that it is being made based on what I find to be cooperation between the parties since separation and is not being made with the hope that this is put in place to help the parents improve their cooperation as they are well beyond that point some 4.5 years since separation.

Child Support:

157On this issue Mr. J.M. agrees that his salary can be set at $60,039.00 from which to pay monthly child support. He argues, however, that he should not have to pay from January 1, 2019, as requested by Ms. D.S.

158Mr. J.M. noted his emotional troubles at separation but did not provide medical evidence to support any period that he could not work.

159He claims to have started and stopped employment but eventually has been working steadily although he did not file his 2022 NOA in this proceeding.

160He has paid some support but not at the correct level nor has he been consistent.

161I do not find he has intentionally been underemployed but rather events have affected his focus in this regard. However, the children’s needs have not diminished and have been present throughout. He has the ability and experience in roofing and the construction trade such that he has, after a lull, found full-time employment with benefits.

162As such he will owe support from January 1, 2019, at $968.00 per month for two children based on an agreed upon income of $60,039.00 less payments made to date which I find to total $14,020, leaving a balance owing of $37,276.00.

163I did hear that Mr. J.M. has not paid a cost award of $1600.00 ordered by Justice Cheung and this will be added to the outstanding child support owed and collected enforced by FRO as child support.

164I will, however, provide a credit to Mr. J.M. of the $1500.00 which is half of the $3000.00 dollars that he paid as 2 months' rent for Ms. D.S. and the children after they separated in December 2018 when he was ordered to not return to their matrimonial apartment.

165He testified to this, and this was not challenged that he paid $1500.00 to the landlord, as he knew, the children and Ms. D.S. required shelter and they had a month-to-month agreement with the landlord.

166I have granted a credit to Mr. J.M. of half of the total as this money also covered his obligation to the landlord and was not strictly for support of the children.

167This leaves a balance in child support owing by Mr. JM to Ms. D.S. of $37,376.00

168I have considered his latest financial statement filed, dated February 7, 2020, to consider his budget and what extra he will need to pay each month against these arrears owed in addition to the monthly child support owed and find that he should pay $200 dollars per month against arrears owing.

Order:

1. The primary residence of the children OSM born, […], 2016, and CRSM born, […], 2017, above shall be with Ms. D.S. in the Toronto area.
2. Each parent will have day-to-day decision-making authority for the children while they are parenting them.
3. Ms. D.S. shall continue to make decisions pertaining to the children’s medical needs and advise Mr. J.M. of appointments in advance.
4. Mr. JM shall continue to make decisions pertaining to the children’s dental needs and advise Ms. D.S. of appointments in advance.
5. Each parent will be registered with the Doctor., Dentist, and school and each will request from these services for the children that all notices to the parents be sent to both.
6. Ms. D.S. and Mr. J.M. shall make joint decisions as required about the children’s education. This joint decision-making does not apply to the school that the children attend, this will be the sole decision of Ms. D.S. as the children live primarily with her and attend school most days from her residence.
7. Both parents may attend all functions at the children’s school.
8. The parents shall make jointly any catastrophic decision or significant decision regarding the children’s health or education that may need to be made.
9. Both parties shall have the same right to communicate directly with any service providers who provide service to the child (i.e., doctors). The consent of the other parent for such communication or for the service provider to release information, documentation, or records to the other parent, shall not be required. This order shall be sufficient authorization for said release.
10. In the event of an emergency involving the child, the parent who has care of the child shall provide the other with details of the nature of the emergency and the location where the child is. If the child is in hospital the parent who does not have the child in his or her care shall have the right to see the child.

Parenting schedule:

1. Mr. J.M. and the children shall have regular parenting time as follows: a) Alternate weekends from Fridays to Mondays. b) The parties will continue to use the drop off location on Fridays at the Toys R US at Sherway Gardens, in Mississauga and Mr. J.M. will drop the children off on Monday to their school. c) If Monday is a holiday of PD Day, he will drop the children off on time on Tuesday to their school or when school is closed to Ms. D.S. or their day program or as arrange between the parties. d) The children’s OHIP card should travel with the children in a safe spot in the children’s bags between each home.
2. Holiday/ special occasions - parenting time between the parents and children: a) Christmas: Ms. D.S. will have the children with her December 23 to December 25 at noon. Mr. J. M. will have the children December 25 at noon to December 28 at 6 p.m. b) Easter: The children will be with Ms. D.S. Easter Sunday until 2p.m. and then with Mr. J. M. From 2 p.m. to Monday at 6. pm. c) March Break: The parents by February 1st of each year will discuss splitting this period of 9 days 4.5 days each or rotate these 9 days from Friday after school to Monday return 9 days later to school from year to year between each household. d) Summer schedule: Alternating weeks in the months of July and August of each year rotating from Fridays p.m. to Wednesday p.m. e) Mr. J.M. shall spend 3 hours with the children on their birthdays unless this day falls on his regular weekend then some time should be arranged for Ms. D.S. to spend 3 hours with the children. Note the child’s OSM birthday might fall on March break vacation and the parents will need to find a method to spend time with this child before or after. f) The parent should not involve the children as go between to rearrange any parenting time if required to permit the children to attend some special family events. Further the above parenting schedule needs to take precedence and not be altered lightly for social events that the children will inevitably be invited to from school or church friends. The parents need to use flexibility when rearranging the parenting schedule.
3. In addition, the following communication protocol is to be followed between the parents: a) They shall not use the child to pass messages or documentation on to each other. b) They shall encourage the child to have a strong and positive relationship with both parents and shall use all reasonable efforts to foster a meaningful relationship between the child and the other parent. c) The party shall communicate about the child by email and/or text. Each party will respond promptly by return email or text to the email or text of the other. The parties shall exchange information about the child, including notice of any scheduled medical or counselling appointments, report cards, behavioural concerns, upcoming activities, and any request for changes in the parenting schedule. d) Emails/texts shall be brief, respectful, related solely to the child, with no reference to either of the parties or their activities. The party shall not email/text each other excessively. e) If one party requests information or a temporary change by email/text, the other party shall respond within 48 hours. Requests made giving less than 48 hours’ notice shall be responded to as soon as possible. In the event of an emergency or truly time sensitive matter, the parties shall call each other. If a reply requires more time than 48 hours, and email/text shall be sent advising that the reply cannot be reasonably given within this time period and advising when the response can be expected. f) Any discussions between the parties at transition times, activities or other special events where the child is present or nearby shall be limited to brief and cordial interchanges. If one party considers that the discussion is not courteous, he or she shall simply say “I no longer wish to discuss this”, and upon one party saying so, both shall immediately discontinue the conversation and shall take up the issue later by email/text.
4. International travel Children’s Canadian Passports: a) Each parent may arrange and travel with the children internationally provided that the other parent is given 45 days in advance (except in an emergency) notice via email of the details of the proposed trip departure and return times, location, address and mode of transportation and a telephone number where they can be reached. b) The travelling parent shall permit the other parent to call the children every other day during the trip to speak to the children for 15 minutes or so. c) Ms. D.S. shall within the next 6 months apply for the children’s Canadian passports by providing to Mr. J.M. the completed application for each child for his signature. The parents shall share equally the cost of obtaining the children’s Canadian passports. d) If Mr. J.M. does not return the application form signed within 14 days of his receiving the same from Ms. D.S., she may apply for the children’s Canadian passport without Mr. J.M.’s permission. e) Ms. D.S. shall keep safe the Canadian Passports and the other children’s important documents such as their birth certificates, SIN cards a librarian for safe keeping and provide any to Mr. J.M. as required. Mr. J.M. shall return the document to Ms. D.S. 7 days after requiring its use.
5. Child Support: a) Monthly ongoing: Commencing October 1, 2023, Mr. J.M. shall pay to Ms. D.S. monthly child support for the 2 children OSM born, […], 2016, and CRSM born, […], 2017, based on his imputed annual income. b) Arrears in child support owed: As of the date of this order Mr. J.M. owes arrears in support totally $37,376.00 and commencing October 1, 2023 he shall pay $200.00 against the arrears until paid down in full. c) A support Deduction Order shall issue.
6. Cost: a) Any party seeking cost shall by October 15, 2023, serve via a 14b to my attention 2-page max submissions, bill of costs pertaining to the trial only and any signed offers that were served. b) Ms. Adams-Idode shall by October 15, 2023, prepare this order in draft and send this to Mr. J.M. for his review and approval through a return email. Once received back or if not after 10 days, submit the same to me via a 14b and completed updated SDO and form 2 for my consideration.