Court File and Parties
ONTARIO COURT OF JUSTICE DATE: October 7, 2024 COURT FILE No.: Brampton FO- 16-610-0003
BETWEEN:
JOSE FRANCISCO OLEA ORTEGA Applicant
— AND —
KARLA TORRES MORENO Respondent
Before: Justice J. Beasley
Heard on: September 12, 13, and 16, 2024 Decision released on: October 7, 2024
Counsel: Kavita V. Bhagat, for the Applicant Leena Leva Kumar, for the Respondent
Endorsement
1The Applicant Jose Francisco Olea Ortega and the Respondent Karla Torres Moreno started living together in the fall of 2010 and separated during the winter of 2011.
2They are the parents of Mia Juliet Olea Torres, who was born on [...], 2011. Her parenting schedule and child support arrangements are at issue in these Motions to Change.
3The Applicant resides with his parents. He is in a long-term relationship with Ms. Dias, and she has two children, ages 18 and 19.
4The Respondent resides with Mia and her younger brother, Emanuel, who is 2. She has a new partner who resides in Burlington. They are engaged. He has a week-on/week-off shared parenting arrangement for his two children, ages 12 and 14.
5The Applicant started litigation in 2016 when the child was five years old. The litigation was resolved by a consent final Order of Justice Clay dated December 13, 2016.
6In 2016, the parties agreed to joint custody with primary residence to the Respondent, alternate weekends from Friday to Monday morning with the Applicant and two non-consecutive weeks in January and February, the Applicant to be responsible for pick up and drop offs, shared decision-making with the Respondent having final say after consultation, travel, holiday time, etc.. The Applicant was obligated to pay child support of $ 546 per month based on $ 60,000 per year and 75% proportionate contribution to the after-tax cost of extraordinary expenses, including before and after school care and dance ($122). Other extraordinary expenses were to be agreed to in advance, with consent not to be unreasonably withheld.
7Subsequently, when Mia was 7, the Applicant filed a Motion to Change in 2018 to address parenting issues further, which resulted in a consent Order of Justice Parent dated September 17, 2018.
8In 2018, child support was changed to $ 498 per month based on the Applicant’s 2017 income of $ 53,935. The parties changed the section 7 provisions:
7 Commencing October 1st, 2018, the Applicant shall contribute $ 300 per month, towards the Child’s Mia Juliet Olea Torres, born [...], 2011 special and/or extraordinary expenses. The Child, Mia Juliet Olea Torres, born [...], 2011, is currently attending competitive dance lessons and may continue to do so. It is further acknowledged that the parties intend to register the Child, Mia Juliet Olea Torres, born [...], 2011, in tutoring and that unsubsidized daycare may be required for the Child, Mia Juliet Olea Torres, born [...], 2011 in the future.
8 The Applicant, Jose Francisco Olea Ortega's contribution to all extraordinary expenses including present extracurricular activities, tutoring and daycare is capped at $3600.00 per calendar year. It is acknowledged that this amount does not include medical or dental expenses not covered by any insurance provider.
9Commencing October 15, 2018, the parties will share on an equal basis, the costs of any uninsured necessary medical and dental expenses for the Child, Mia Juliet Olea Torres, born [...], 2011.
9There are 2 Motions to Change before the Court. Both parties acknowledge that there has been a material change of circumstances.
[10] The issues are: a) Should Mia continue to reside in Mississauga, or can the Respondent relocate to Burlington with her? b) What parenting schedule is in Mia’s best interests? c) What should the decision-making responsibility arrangement be? d) What should the extracurricular activity arrangements be? e) What child support should be paid? f) What retroactive adjustments should be made to child support and section 7 expenses? g) Should the Travel conditions be changed?
11The Applicant is seeking a shared residence schedule should the mother continue to reside in Peel. If the mother relocates to Burlington, he seeks Mia's primary residence be with him. The mother would have parenting time with Mia on three consecutive weekends with a shared holiday schedule.
12The Applicant wants to continue being involved and active in Mia's life. He wants Mia to benefit from her parents' ongoing and positive involvement. He seeks to be involved in Mia’s physical, cognitive, emotional, and social development.
13The Respondent is seeking leave to move Mia to Burlington in the summer of 2025, change the parenting schedule to 3 weekends per month for the Applicant and half of the summer, and that the other parenting terms, such as the paternal grandparents having PD days and the father having a week in January and February be rescinded.
14Both parents seek to impute income to the other. The Applicant asks that his child support obligation be retroactively decreased. Both parties acknowledge that there has been an overpayment of special and section 7 expenses but disagree on the amount.
15Mediation was not successful in 2022 or 2023 when the parties participated in the Child and Youth Informed Mediation (Brampton Pilot Project).
Should Mia continue to reside in Mississauga, or can the Respondent relocate to Burlington with her?
16I have determined that Mia move to Burlington in the summer of 2025.
17The Applicant opposes the move. He asserts that Mia wants to remain in her neighbourhood and school. He is content to have primary care of her. If the Respondent remains in Mississauga, he seeks a shared parenting schedule, 2-2-3 or week on/off.
18The Respondent and Mia have resided in the same apartment in Mississauga for 11 years.
19The Respondent asserts that the Applicant resides primarily with his partner and does not reside with his parents in the building. The Applicant admits he spends time at his partner’s residence when Mia is not in his care. He also asserts that Mia enjoys a close relationship with his partner’s two children and enjoys time spent with them. Mia spends distinct time with her parents. Although the apartments are in the same building, Mia does not interact with the other parent while in one parent’s care.
20In January 2022, the Respondent considered moving to Burlington to reside with Mr. Gomez and blend their families and their expected child. Her fiancee resides in a rented four-bedroom, two-bathroom house in a nice area. He has a week-on/week-off parenting schedule for his two children. Mia would have her own room and private space.
21The Respondent asserts that Mia was excited about the move and told all her friends at school and teachers about it. Mia and her fiancee’s two children get along well and are close in age.
22The Respondent asserts that there is no reason to change Mia’s primary care from her. She has been her primary caregiver since birth.
23Mia has been diagnosed with a learning disability. Her needs are in the following areas: vocabulary, visual motor integration, visual organization and phonological awareness. She has an IEP to support her educational needs. The Respondent asserts that Mia benefits from having a routine, especially during the school year. The Respondent says that it is in Mia's best interest to have one primary residence so that her weekly routines are consistent.
24The Applicant asserts that Mia should not change schools. Mia's academic performance has been a struggle for her. Her teachers are familiar with her needs and have adapted their teaching methods to address them.
25The parties benefitted from an Office of the Children’s Lawyer Voice of the Child report in June 2023.
26Mia was aware that her mother wanted to move to Burlington. She indicated that the Burlington home was okay and voiced no issues. She did not like the daily commute from Burlington to school. Mia stated that she did not want to live in Burlington as it would be hard to see her dad as much as she wanted to.
27Mia also wanted to continue to go to school close to her friends. Mia stated that she wants to attend her local high school which is a sports high school where her friends will be going. Mia stated that her mom's boyfriend was allergic to her cat, so she had to give the cat away. Since then, her mom has bought her a new cat; she is worried that she will also have to give this cat away if her mom's boyfriend is allergic.
28Overall, Mia spoke of positive experiences in both her mother's and father's homes and wanted to spend equal time with her time with her parents due to the strength of both of these relationships. Mia appeared to trust both of her parents and indicated that she was comfortable in telling them that she wants to spend more time with her dad I equal time with each parent.
29Mia also advised her doctor that she wanted equal time with her parents.
30The Respondent is prepared to share Mia's transportation for parenting time with her father and proposes three weekends per month, a month in the summer, etc..
31The two homes are 35 kilometers apart, a drive of 40-55 minutes.
32The Respondent asserts that the 35-kilometer move is not far and that the change in residence is not likely to impact the child’s relationship with her father significantly. The Applicant spends alternate weekends with Mia now.
33The Respondent plans to move to Burlington in the summer of 2025. In June 2025, Mia will finish her last year of elementary school at St Catherine of Siena, Mississauga, which is her grade 8 year, and start high school fresh in her new school. She will take the bus to school. The mother will continue to support Mia’s education and has checked into the support available to Mia at the Burlington High School. She will maintain the same family doctor, Dr. Salin. The Respondent supports counselling for Mia with Everymind. She feels Mia would benefit from speaking to a professional and having a safe space to discuss her feelings.
34The Respondent asserts that Mia will continue to have relationships with her friends and family. She will also continue her extracurricular activities, such as volleyball, swimming, and tutorial classes during her school year.
35The Respondent proposes that the Applicant have three weekends during the school year. The parents have agreed to share long weekends and holiday times.
36The Respondent acknowledges that Mia wants more time with her father and proposes the three weekend schedule. She would also spend more quality time with her father during summer vacation, if she spent one month with each parent, as she will not be in school.
37The Respondent also proposes driving to drop off the Child on Fridays and the Applicant dropping her off at school on Mondays or at her home on Sunday nights if it is easier for him.
38Relocation is governed by Section 39.3 of the Children's Law Reform Act. 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; the Respondent wishes to blend her fiancee’s family, their child, Mia and herself.
(b) the impact of the relocation on the child; Mia has lived with her mother since birth. The parties separated before Mia’s birth. Mia has resided in the same building for 11 years. She has attended the same school. She has close friends. Mia is in grade 8, and the Respondent would arrange the actual move after she completes grade 8 and before she starts high school. Mia has indicated her wish to go to high school with her friends. Mia sees her father and his parents on alternate weekends. She would like more time or equal time with her father. Exchanges of Mia occur in the apartment building lobby. A move would mean a drive for Mia at exchanges and a review of the parenting schedule which is addressed later.
(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; Mia spends alternate weekends in her father’s care. The paternal grandparents are also significant in her life as they pick her up at school and spend time with her, including PD days. The Applicant is seeking primary care or a shared parenting schedule.
(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; In January 2022, the Respondent invited the Applicant to a meeting to meet her new partner and proposed the move at the end of Mia’s grade 5 year. The Applicant was surprised she wanted to relocate and indicated his opposition. A letter from counsel dated January 25, 2022, confirmed his opposition.
(e) the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside; Paragraph 1.15 of the December 13, 2016 Order of Justice Clay provided that the Applicant and the Respondent will live near each other so that the said child shall have frequent contact with both parties. The Applicant and the Respondent shall not move their residences from the Region of Peel without the other's written consent or a court order. If the Respondent notifies the Applicant of her intention to relocate, the parties shall review clause 1.15. The proposed relocation is only 35 kilometers from the Respondent’s current address. The Respondent notes that moving from her current address to the northern part of Caledon would be around 62 kilometers and a 52-minute drive. The drive could be between 28-45 minutes to Burlington. There was a period in 2022 when Mia was commuting from Burlington to attend school in Mississauga. She was very vocal in stating that she did not enjoy it.
(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 The Respondent proposes that the Applicant’s parenting time include three weekends per month and a whole month of the summer and that she would share the transportation. Her proposal is reasonable. She has always been Mia’s primary caregiver. Her proposal allows Mia to spend more time with her father, which respects Mia’s views and preferences. I see no reason to change Mia’s primary care. Even if no move were contemplated, I would not order a week-on-off arrangement. The father has not shown that he can prioritize Mia’s interests on a daily basis.
(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. 2020, c. 25, Sched. 1, s. 15. Mia's extracurricular activities are the primary source of contention between the parties. I will address this more later. The Applicant relies on the proximity of the residences to resist the move. In the Voice of the Child report, Mia acknowledged that she does not go in between the two apartments other than for her assigned parenting time with each parent.
39The Applicant also resists the move out of concern about the impact on his parents’ relationship with Mia. The Applicant and his parents moved into the same building in 2012. At that time, the paternal grandparents and the Respondent got along well and supported her in her primary care of Mia. The Respondent asserts that the Applicant was not involved with Mia until the end of 2015. At that time, he introduced his partner and asked if he could start overnight visits with Mia. The Respondent agreed. Mia was age 4. The Applicant has a close bond with Mia and is an involved parent.
40The two previous final orders were based on minutes of settlement. The parents acknowledged the importance of both sides of the family.
41The Applicant would have three weekends per month and additional vacation time. The Respondent proposes changing the current order to rescind the grandparents' PD days. Instead, whoever has that weekend with Mia will also have the PD day. If the PD day falls on Jose's weekend, he would have a three-day weekend with Mia. If it falls on the Respondent’s weekend, the Respondent has a three-day weekend with Mia.
42Extra-curricular activities were an issue in the 2018 Motion to Change. The parties agreed to the following, as set out in the 2018 Order:
The Respondent will provide the Applicant with the Child's, Mia Juliet Olea Tones, born [...], 2011, schedule for dance or other activities within seven days of receiving the notice or invite.
The Respondent will provide the Applicant with at least seven days' notice in writing to request any changes to the Applicant's access in order to facilitate the Child's, Mia Juliet Olea Torres, born [...], 2011, attendance at an extracurricular activity.
The Applicant shall inform the Respondent in writing within 48 hours of receiving the request, if: a. He is able to facilitate the Child's, Mia Juliet Olea Torres, born [...], 2011, attendance at the activity; or b. He would like to trade the weekend for a non-activity weekend, such substituted weekend to occur within the next month or as otherwise agreed, such substituted weekend not to affect the regular access schedule; or c He would like to exercise access and that the Respondent transport the Child, Mia Juliet Olea Tones, born [...], 2011, to the activity.
14 The Child, Mia Juliet Olea Torres, born [...], 2011, will at no time be signed up for extracurricular activities on more than 6 of the Applicant's weekends in a calendar year, except with the prior written consent of the Applicant or a Court order. If the parties are unable to agree to the enrolment of an extracurricular activity which falls on the Applicant's weekend, the parties will first attend mediation if available, failing which, either party will be at liberty to commence litigation proceedings.
The Child, Mia Juliet Olea Ton-es, born [...], 2011,. currently attends dance practice on Fridays from 4:30 p.m. to 6:30 p.m. It is acknowledged that this allotted time may change in the future; in the event that the practice on Friday's occur at a different time, the Applicant, Jose Francisco Olea Ortega, will allow the child to attend. a. The Applicant shall facilitate transport of the Child, Mia Juliet Olea Torres, born [...], 2011, to and from her dance practice. If the Applicant is not able to facilitate such transport, the Respondent, Karla Torres Moreno, shall arrange transportation from the Child, Mia Juliet Olea Torres, born [...], 2011. b. The Applicant shall collect the Child, Mia Juliet Olea Torres, born [...], 2011, at 7:00 p.m. at the residence of the Respondent, or if advised in advance in writing, at the home of the Respondent or the paternal grandparents.
The parties acknowledge that except in accordance with the exclusions articulated in paragraphs 11 through 15 hereof, extracurricular activities will not be scheduled by the Respondent to further reduce the Applicant's time with the child except with the Applicant's written consent or a Court order.
43The Applicant asserts that the mother has organized Mia’s activities in breach of the Order and to interfere with his parenting time and that the relocation would further limit his time with Mia. The Applicant complains that the Respondent schedules activities during his parenting time does not consult him in advance and tells him to pick up Mia from her activities on very short notice.
44The Respondent asserts that she makes every effort to schedule activities for Mia during her parenting time. This means that activities are planned for Monday to Friday time. The Respondent says that she does not schedule activities for Mia on weekends. She feels that the Applicant will not consent. She asserts that he did not attend dance recitals, etc. when Mia was in dance.
45The Applicant has a whole week of parenting time in January and February. This means that Mia’s activities, such as swimming on Mondays, occur during the week in January and February. This has resulted in the Applicant complaining that he is told of the particulars on short notice and required to bring Mia to the activity or pick her up. It has also resulted in letters from his counsel.
46Parenting involves responsibilities. Mia has been involved in her regular midweek activity schedule during January and February. The Applicant’s suggestion that Mia should not be involved in activities during these weeks when the activity is a 12-week commitment is unreasonable. The January and February weeks are not vacation weeks. Mia is in school and has her usual activities. The weeks were chosen as the Applicant works in construction and may have limited work at that time of year.
47Mia is 13 years of age. She enjoys physical activity. She is involved in swimming and volleyball. She is no longer involved in dance. It is clear from emails communications that the Applicant did not accommodate her attendance at dance events on his weekends.
48The parties have communication challenges. Unfortunately, Mia’s involvement in extracurricular activities has been impacted. It is unreasonable for a parent to expect parenting time unfettered by a child’s interests and activities.
49Mia loves both her parents. She feels loved by both, and they both love her. To both parties’ credit, this is her view of her family. It is also to their credit that Mia has not seen them argue. She also indicated that she does not see her parents together.
50In determining whether a relocation can occur, the court shall not consider whether, if the child’s relocation were prohibited, the person who intends to relocate the child would relocate without the child or not relocate.
51The Applicant has the burden of proving that the relocation would not be in the child's best interests. The Respondent has had primary care for Mia since birth. He has not established that the move would not be in Mia’s best interests.
52The Applicant asserts that Mia has a close relationship with his girlfriend's children. They are aged 18 and 19. The 18-year-old is heading off to college. Currently, the three children spend weekend time together. The father will have more weekend time to allow these relationships to continue.
53The Applicant asserts that Mia has friends in the apartment neighbourhood. She is rooted in the community. This is the place she has known her entire life. Children walk back from school together, hang out, play, and do their homework together. She has had some friends since kindergarten. The father asserts that it is in her best interest that she gets her wish of attending high school with these children. Mia can continue these friendships during her father’s parenting time. She will also graduate from grade 8 with them.
54I have determined that the move is in Mia’s best interests. The Respondent is moving to Burlington to establish one household for her blended family. She is not asking to move to frustrate the father’s parenting time such as in Jantzi v. Jantzi, 2003 CarswellOnt 5370 (Ont. S.C.) and Sheikh v. Sheikh, 2005 CarswellOnt 1690 (Ont. S.C.).
55The Respondent has been Mia’s primary caregiver. The Applicant has had weekend parenting time. Her plan is considered and certain. I find that a disruption in custody would have more serious consequences to the child than the disruption of moving: Lindsay v. Lindsay, 2002 CarswellOnt 4291 (Ont. S.C.).
What parenting schedule is in Mia’s best interests?
[56] I have determined that the parenting schedule shall be: a) The Applicant, Jose Francisco Olea Ortega Applicant, shall have three weekends per month, weekends 2, 3 and 4. The weekend shall commence Friday, with the Respondent dropping off Mia by 7:00 p.m. and the Applicant Jose Francisco Olea Ortega dropping off Mia on Sunday nights at 7:00 p.m. or to school on Monday mornings. The Applicant Jose Francisco Olea Ortega shall advise the Respondent Karla Torres Moreno of the Sunday or Monday drop-off time by Friday at noon by text. If no notice is provided, the return time shall be Sunday at 7:00 p.m.. b) The weekends shall be extended 24 hours if Friday or Monday is a PD day. c) If the Applicant Jose Francisco Olea Ortega Applicant has the child in his care for the first weekend of the month, he shall have weekends 1, 3, and 4 with the child being in the care of the Respondent Karla Torres Moreno for weekend 2. d) The holiday schedule shall supersede the regular parenting schedule. e) The Applicant’s parenting time may be spent with him or his parents. f) Clause 1.14 of the 2016 Order of Justice Clay is rescinded (grandparents having PD days is rescinded). g) Right of first refusal is declined. h) the Applicant shall have Mia in his care between the first and second semester, in approximately February each year, from the day after her last exam to the day before school resumes; i) For the first four weeks of the summer, with the week to start on the Friday at 7:00 p.m. after her last exam, Mia shall be in the care of the Applicant in odd-numbered years and the Respondent in even-numbered years, and the balance of the summer, in the care of the Applicant in even-numbered years and the Respondent in odd-numbered years; with Mia to be returned to the Respondent’s care on the Sunday at 7:00 p.m. before school starts.
57Currently, Mia resides primarily with her mother and spends alternate weekends with her father. In January and February, Mia spends a full week with her father. PD days are spent with her paternal grandparents.
58The new summer schedule means that Mia will spend the first four weeks of the summer with her father in 2025.
59I have removed the week in January and February for the Applicant and replaced this time with some days after her January exams and the start of the second semester. Mia is going into high school and will be residing in Burlington. In the Voice of the Child report, Mia indicated she did not like the commute to school from Mississauga.
60In 2016, the parties agreed: “lt is in the said child's best interests to continue a relationship with her maternal and paternal grandparents. The grandparents shall have reasonable telephone access to the said child. In addition, the grandparents (le. parents of a party) can exercise access if that party is unavailable to care for the said child during that party's scheduled time. The paternal grandparents shall have access to The said child on PD/ PA days from 9:00 a.m. to 6:00 p.m .” This term is being rescinded. Mia has a special relationship with both sets of grandparents. Her paternal grandparents supported the Respondent in Mia’s early years and have continued their significant involvement in her life by picking her up from school, spending PD days, and other times with her. This care arrangement has worked well. Mia will be entering high school in September 2025. The weekends will include the PD days. This will allow her to spend time with her paternal grandparents or nearby friends while in her father’s care.
61While the families reside in the same building, Mia does not have free access to both sides of her family. She is in her mother’s care or her father/grandparents’ care. The mother has sometimes felt uncomfortable and believed the grandparents were watching her comings and goings. She has requested a different parking spot on a few occasions that would not be visible on the grandparents’ outdoor camera.
62The Applicant noted in his evidence that he sought a right of first refusal. It is not claimed as part of the relief claim. The Respondent opposes a right of first refusal if she cannot care for Mia for more than 2 hours. She asserts that this would be disruptive to Mia. Mia has friends and likes to spend time with friends, the children of both her parents’ partners and both sides of the family. I decline to make this order.
What should the decision-making responsibility arrangement be?
[63] I decline to change the decision-making responsibilities. I will revise the extracurricular activity terms as follows: a) If an activity extends past 6:00 p.m. on the exchange day, the child may attend the activity and be dropped off late as long as seven days' notice of the revised drop-off time has been provided. If the activity ends after 9:00 p.m., the drop-off time shall be the next day at 9:00 a.m. b) The Respondent shall not arrange for any activities for Mia on the Applicant’s weekends (Saturday or Sunday) or summer parenting time. c) The Applicant shall not arrange for any activities for Mia on the Respondent’s weekends or summer parenting time.
64Mia is heading into high school. There may be Thursday or Friday night activities on weekends where she will be in her father’s care. She should be able to enjoy the activities. I am not confident that consent would be given.
65Mia may have activities during the week, which may occur during the Applicant’s parenting time after her January exams. It will be up to Mia and her father if she attends.
66The 2018 Order provides for a decision-making process with consultation and the Respondent having the final decision.
67In 2016, the parties agreed to share decision-making with the Respondent, having the final say after consultation. They also agreed: “If either party intends to sign up the child in extracurricular activities that fall on the others parenting time they shall obtain the others consent. Such consent shall not be unreasonably withheld.”
68The Applicant seeks joint decision-making responsibility. If the parties cannot agree, they will use alternate dispute resolution methods to resolve the dispute. The Respondent opposes the change.
69The Applicant describes the parenting relationship as a high-conflict relationship. Their views have not aligned, and they have had ongoing problems with almost all aspects of parenting Mia.
70The Respondent asserts that the Applicant cannot prioritize the child's needs or communicate with her in a child-focused manner. The Applicant refuses to speak to the Respondent by phone.
71While the Applicant asserts that Mia requires tutoring, he has objected to the Respondent’s friend providing tutoring or having the tutoring sessions impact even half an hour of his Friday evening parenting time.
72The Applicant finds co-parenting with the father to be fraught with harassment, belittling and verbal abuse. The communications are by text and email.
73The Applicant did not facilitate Mia's attending birthday parties with friends on his parenting weekend even when makeup time was offered, and the Respondent offered transportation for the event. The same was the case with her classes, like swimming, gymnastics and other extra-curricular activities. He would refuse to allow her to go if anything landed on his weekend or during his full-week time in January and February. He could have attended with her and watched her perform, which would not take time away from his parenting time.
74The Respondent asserts that Mia was constantly sad when she missed her activities, including dance recitals and competitions she had practiced throughout the year because the Applicant refused to have her attend anything during his parenting time. Before the 2018 Order, he stopped paying for any activity, as he disagreed with Mia's participation.
75If the Applicant allowed the Respondent to take Mia to a dance class or guitar lesson during his parenting time, he would be upset if the Respondent was delayed a few minutes due to traffic. The Respondent found this stressful. The Applicant refused to pick Mia up from an activity and demanded that she be picked up in the building lobby.
76The Respondent’s approach was more child-focused. When the Applicant asked for additional time to allow Mia to celebrate his partner’s daughter’s birthday, she agreed.
77Mia is a healthy child. She is on an IEP. The Respondent has been the parent to be involved with the school. She provided notice to the Applicant of the education issues. No issues have arisen concerning the Respondent’s decisions.
78Communication is a challenge for the parties. The Applicant also seeks to revise the communication terms.
79I will revise paragraph 1.11 and order that the parties shall communicate with each other in writing only, and only for issues pertaining to the Child, except in an emergency. The communication shall be child-focused, cordial, and respectful.
Phone calls with the Child:
80Paragraph 1.11 of the 2016 Order shall be varied such that the Applicant shall pay for a cell phone and monthly cell phone plan for the child, and the child may telephone the Applicant or the Respondent whenever she wishes. If a parent wishes to communicate with Mia, they may text her to advise her and she may return the call when available.
81Under paragraph 1.11 of Justice Clay's Order dated December 13, 2016, there is no fixed time for the child's calls with either parent.
82The routine is that when a parent wishes to communicate with Mia while she is in the other parent’s care, the parent provides a text as notice that a call will be made.
83The Applicant seeks an order that: “The party whose care Mia is not in, may communicate Mia once daily by video/phone call. The party whose care the child is not in will initiate the phone call anytime between 7 p.m. - 8 p.m. The calling party will send a text 5 minutes before the phone call. The parent whose care the child is in will ensure they are available during this time to facilitate the call.”
84The Applicant finds that the Respondent has not provided Mia’s schedule so he can know when to call. The Respondent finds that if the Applicant gives notice that he will be calling and she does not immediately acknowledge it, repeated notifications occur with negative comments. It is not always practical for a phone call to happen. She does her best to ensure Mia speaks to her dad and returns the call. She seeks a fixed schedule, such as between 7:00 p.m. and 9:00 p.m. on particular days.
85The Respondent seeks an order that “Either parent may communicate with the child by phone on days on which they do not have parenting time with the child between 8:00 pm-8:15 pm. There shall be no make-up time for missed calls with the child. In the alternative, the Applicant shall pay for a cell phone and monthly cell phone plan for the child, and the child may telephone the Applicant or the Respondent whenever she wishes.”
86Mia is in grade 8. Her bedtime is 9:30 p.m. or later.
87The Applicant has purchased an iPhone for Mia. There is no current data plan. The iPhone is used on Wi-Fi. Mia is in grade 8 and can be contacted directly by her parents or phone them herself.
What child support should be paid?
88I decline to impute income to the Applicant. Child support will be paid on his line 150 income. The change in child support will be effective May 1, 2021. I find that there has been an overpayment of $ 1,016.
89The Applicant seeks to change his child support based on his line 150 income commencing the month after the Order, October 1, 2018.
90The Respondent asks that income be imputed to the Applicant and asks for a retroactive change from October 1, 2019.
91The Applicant asserts that his reported income is his total income and that he cannot earn more. His testimony is that due to a work-related accident, he suffers from severe anxiety. He has continued with the same employer but in a different role. The 2018 Order was based on an anticipated income of $ 60,000, and he stated that he was on disability and was interested in returning to school. Instead, he took on a modified role as an aide to his boss. His tasks include excavation, basic maintenance of vehicles, picking up material, dropping off machinery, picking up food, and summary reports. He has provided no medical evidence of a diagnosis of anxiety.
92The Applicant earns a fixed weekly income. He usually works 7:00 a.m. until 4:00 p.m. but could work up to 50 hours per week for the same pay rate.
93His income was $73,834 in 2015 and $53,085 in 2016. The first child support order occurred in 2016.
94The Respondent seeks to impute an income of $ 75,000 to the Applicant. She states that he has worked in construction and operated excavators, drilling and other machinery for over seven years.
95The Applicant started working for Tor-Ex Inc. in 2017 and earned $ $37,000. His income in 2018 was $38,937. The child support order in 2018 was based on $53,000. The difference of around $24,000 is not explained. In 2018, he paid for truck driving instruction and a driving test, consistent with his evidence that he considered returning to school.
96His reported income for 2019 is $43,587, 2020 is $46,469, 2021 is $46,436, 2022 is $52,792 and 2023 is $52,206.
97The Respondent provided some wage reports for heavy equipment operators and drillers to support her assertion that Jose could earn around $75,000-$80,000. She asserts that he is underreporting his income or is under-employed.
98Both parties take issue with the disclosure. The Applicant provided his bank statements, credit card, and line of credit card statements for four years.
99The Applicant was questioned about discrepancies in reported income, unusual deposits, and spending. The deposits were shown to be reimbursements from his employer for work-related expenses he paid.
100The Respondent took issue with a few Applicant’s purchases. He did purchase a suit from a high-end store for a special occasion. He indicated that he shopped around and had limited choices available to him. He spent over $ 6,000 in four purchases at the Apple Store in one month. Two of the purchases were iPhones for Mia and his partner's daughter. He did purchase silver twice in March of 2020 for a total investment of $ 1,300.
101In December 2019, the Applicant traded his 2016 Ford Edge Truck and leased a 2020 Lincoln Aviator. He purchased the vehicle at the end of his lease. His evidence is that his partner contributed $ 19,500 to the cost of the car as she also uses it. The insurance covers her.
102The deposits and the spending history are not sufficient to establish that there is another source of income.
103The Applicant has no rent, groceries, utilities or other household expenses. He claims to reside with his parents, who pay for such costs. He did not advise of his contributions to his partner’s household expenses.
104I decline to impute income to the Applicant.
105The Applicant seeks to change his monthly child support obligation for the month after the 2018 Order. The Applicant seeks to change the child support effective October 1, 2018, to $ 498 per month based on his 2020 income. The Applicant calculates his overpayment of child support since October 1, 2018, at $423 using his line 150 income each year and the Guidelines. The 2018 Order was based on his 2017 income of $53,395. There was an annual disclosure provision in the Order.
106The Applicant provided his 2019 and 2020 Notices of Assessment on April 28, 2021 and again on November 28, 2022, when he started this Motion to Change. On the record before me, there is no evidence of any request to lower his child support obligation until April 28, 2021. The support change will be effective May 1, 2021.
107The overpayment is calculated at $ 1,016. The guideline support on 2021 income of $ 46,436 is 431; on 2022 income of $ 51,516 is $ 475; on 2023 income of $52,206 is $ 481. The overpayment is (8x$67)+(12x$23)+(12x$17) for a total of $1,016.
What special and extraordinary expenses should be paid?
108The 2018 Order provides for 50-50 sharing of expenses.
109The Respondent requests that special and extraordinary expenses be paid proportionate to income. She resists an imputation of income to her.
110The Applicant asks for the continuation of 50-50 sharing and that income be imputed to the Respondent of $ 45,000. She did earn $ 45,093 in 2020. She is not working at this time. He asserts that since 2016, the Respondent has pursued three career options: an early childhood course, a personal trainer course and nursing.
111The Respondent will be starting the nursing course in January 2025. Her evidence is that she wanted to pursue nursing and, in 2016, completed high school to do so. She was not accepted into nursing, so she pursued the personal training course. She has a learning disability and needs additional time to learn. During COVID, she could not obtain employment in the fitness industry and returned to her job at a Money Mart from home and at the office. In 2021, when she was pregnant, she left that employment. She has now been accepted into nursing.
112I agree that Drygala v. Pauli, [2002] 41868 (ONCA) established the test for imputation of income. The Respondent is not employed at this time. I do not find her education efforts unreasonable or a reason to impute income.
113The Respondent’s line 150 income in 2020 was $ 45,093; in 2021, $ 35,772; in 2022, $24,362; and 2023, $17,512.
114The Respondent is in receipt of OSAP, and the Applicant asks that she be imputed income on the OSAP entitlement, less tuition and other education costs. In Mwenda v. Madituka, 2018 ONCJ 503, the father’s OSAP grants were imputed as income. I cannot determine the Respondent’s OSAP loan or grant amounts on the record before me. She did not know her tuition costs and guessed at $ 2,000. It was unclear if she estimated the semester or year cost. The Respondent’s entire OSAP for the year is about $ 30,000.
115Some of the Respondent’s OSAP grant entitlement will be used for living expenses. Her financial statement shows expenses of $ 46,000 per year. For 2024, the Respondent’s income on the Financial Statement consists only of her CCB at $ 16,920. She has delayed her schooling until January 2025.
116I find that an income of $ 12,500 should be imputed to the Respondent as she receives OSAP, and some portion of the income will be available for living expenses.
117The Applicant asserts that no material change warrants a change to the equal sharing provision. He says that the Respondent received OSAP in 2018 and now. On the record before me, I cannot determine her 2018 income or whether she received OSAP. Also, the Applicant’s child support was based on $24,000 more than his line 150 income, and no explanation was provided.
118The Applicant asks that he be reimbursed for overpaying the child's special and extraordinary expenses from 2019 forward. He asks for $ 11,595.05. The Respondent acknowledges that there has been an overpayment. The parties do not agree on the amount due.
119The Respondent has provided receipts to the Applicant. The Order did not provide for the provision of receipts or an accounting of the costs. At the time of the Order, Mia participated in dance, which cost more than her swimming, volleyball and tutoring activities.
120The 2018 Order capped the Applicant's monthly financial contribution to $300 per month for activities. The Respondent would have been responsible if the cost was more than $600. In 2018, Mia's dance classes alone cost $5,981 from September 15, 2018, to August 26, 2019, an average of $500 per month, not counting her shoes and competition fees, which were another $350, plus her tutoring.
121The Respondent has provided receipts for Mia’s activity costs since the 2018 Order. Her calculations use the twelve-month periods ending in August of each year. The Applicant did calendar year calculations.
122Mia stopped participating in dance in 2020. The section 7 expense arrangement should be changed from September 2019 to August 2020.
123I have already determined that the child support should be adjusted in accordance with the Applicant’s line 150 income. I also find that actual incomes should be used to calculate Section 7 expense contributions.
124I have reviewed the calculations provided by both parties for the section 7 expenses from 2020 to now. I find that the section 7 expenses should be shared proportionate to income.
125The Applicant is responsible for $708 (50% of $ 1,416) in 2020, $1,063 (56% of $1,898) in 2021, $2,169 (75% of $ 2,892) in 2023, and $1,005 (78% of $ 1,288) in 2024. The total Is $4,945.
126In addition, the Respondent has paid $ 5,889.23 in orthodontic costs, which are section 7 costs. I was not provided with the after-tax cost for these costs. In 2023, the Respondent will have no line 150 income, so her contribution is based on an imputed income of $ 12,500. Using an income of $ 12,500 for the Respondent, a divorcemate calculation shows that the Applicant’s after tax portion is $ 4,752 ($391 per month). The Applicant’s section 7 contributions total $ 9,697 (4945+4752).
127The Applicant has paid $300 per month towards section 7 expenses, for a total of $18,000 for the 60-month period. There has been an overpayment of $8,303.
128The Respondent owes the Applicant $9,319 ($1016+8,303). The overpayment has built up over the last five years. Both parties knew Mia was not in dance and that the 2018 Order provisions targeted the dance costs. Both parties could have addressed the overpayment earlier. The Applicant’s support obligation should be reduced by $260 per month, which will render the overpayment fully credited in a 3-year period.
Travel
129The Respondent seeks changes to the travel provisions. She has found the Applicant inflexible when she wants to travel with Mia.
130Paragraph 1.19 of the Order of Justice Clay dated December 13, 2016 requires make up time for 50% of the Applicant’s travel time to Mexico. There is no requirement that any parenting time be missed. The Respondent seeks an order that provides "makeup time" to the Applicant for any in-person parenting time he missed. Paragraph 1.19 will be rescinded.
131The parents will each have one month in the summer and their holiday parenting times.
132The 2018 Order provided different notice periods for trip itineraries depending on the destination: 45 days for Mexico, seven days for the United States and 21 days for travel outside North American locations. Both parties are from Mexico.
133The parenting schedule has changed; Mia is older, and phone and video calls are more accessible. Fourteen days' notice of the itinerary is sufficient.
[134] Paragraphs 1.20, 1.22 and 1.23 of the Order of Justice Parent dated September 17, 2018 are rescinded and replaced with: a) If either parent plans a vacation with the said child, they shall give a detailed itinerary at least 15 days before it begins, including the name of any flight earlier and flight times, accommodation, including address and telephone numbers, and details as to how to contact the said child during the trip. Consent of the other parent is not needed for travel during the parent’s scheduled parenting time. If a notarized travel consent is requested, the travelling party shall pay for the costs of same, and the signed consent shall be returned no later than 7 days prior to the departure date. b) The travelling party shall facilitate one phone/video call per day with the Child, at a mutually agreeable time, while travelling with the Child. c) If a parent seeks to travel with the child at times other than their scheduling parenting time, consent shall be obtained in advance. Consent not to be unreasonably withheld. Any missed parenting time shall be made up within 2 months of the travel.
ORDER
135The Respondent Karla Torres Moreno shall be entitled to move to Burlington with the child Mia Juliet Olea Torres, born on [...], 2011, after July 1, 2025.
136The Applicant, Jose Francisco Olea Ortega Applicant, shall have three weekends per month, weekends 2, 3 and 4. The weekend shall commence Friday, with the Respondent dropping off Mia by 7:00 p.m. and the Applicant Jose Francisco Olea Ortega dropping off Mia on Sunday nights at 7:00 p.m. or to school on Monday mornings. The Applicant Jose Francisco Olea Ortega shall advise the Respondent Karla Torres Moreno of the Sunday or Monday drop-off time by Friday at noon by text. If no notice is provided, the return time shall be Sunday at 7:00 p.m..
137The weekends shall be extended for 24 hours if Friday or Monday is a PD day.
138The holiday schedule shall supersede the regular parenting schedule.
139If the Applicant Jose Francisco Olea Ortega Applicant has the child in his care for the first weekend of the month, he shall have weekends 1, 3, and 4 with the child being in the care of the Respondent Karla Torres Moreno for weekend 2.
140The Applicant Jose Francisco Olea Ortega’s parenting time may be spent with him or his parents.
141The Applicant Jose Francisco Olea Ortega shall have Mia in his care between the first and second semester, in approximately February each year, from the day after her last exam to the day before school resumes;
142For the first four weeks of the summer, with the week to start on the Friday at 7:00 p.m. after her last exam, Mia shall be in the care of the Applicant Jose Francisco Olea Ortega in odd-numbered years and the Respondent Karla Torres Moreno in even-numbered years; and the balance of the summer, in the care of the Applicant Jose Francisco Olea Ortega in even-numbered years and the Respondent Karla Torres Moreno in odd-numbered years; with Mia to be returned to the Respondent Karla Torres Moreno’s care on the Sunday at 7:00 p.m. before school starts.
143If an activity extends past 6:00 p.m. on the exchange day, the Respondent shall provide 7 days’ notice to the Applicant of the revised drop off time. If the activity ends after 9:00 p.m., the drop-off time shall be the next day at 9:00 a.m..
144The Respondent Karla Torres Moreno Respondent shall not arrange for any activities for Mia on the Applicant’s weekends (Saturday or Sunday) or summer parenting time.
145The Applicant Jose Francisco Olea Ortega shall not arrange any activities for Mia on the Respondent Karla Torres Moreno’s weekends or summer parenting time.
146The parties shall communicate with each other in writing only, and only for issues pertaining to the Child, except in an emergency. The communication shall be child-focused, cordial, and respectful.
147The Applicant Jose Francisco Olea Ortega shall pay child support for the child Mia Juliet Olea Torres born on [...], 2011 to the Respondent Karla Torres Moreno in the amount of $ 481 based on his 2023 income of $ 52,206 and the child support guidelines commencing on October 1, 2024 and on the first day of each month thereafter.
148The Applicant Jose Francisco Olea Ortega’s monthly child support obligation shall be reduced by $ 260 per month for 36 months as credit for the overpayment of $9,360 to the Respondent Karla Torres Moreno commencing on October 1, 2024.
149The Applicant Jose Francisco Olea Ortega shall pay his proportionate share of special and extraordinary expenses, that are agreed to in advance, for the child Mia Juliet Olea Torres born on [...], 2011 to the Respondent Karla Torres Moreno, currently set at 80% based on his 2023 income of $ 52,206 and an imputed income of $12,500 for the Respondent Karla Torres Moreno commencing on October 1, 2024 and on the first day of each month thereafter. Consent not to be unreasonably withheld.
150The Respondent Karla Torres Moreno shall provide notice of the section 7 expenses, with a receipt or invoice, net of any subsidies, benefits, income tax deductions, and credits to the Applicant Jose Francisco Olea Ortega.
151The Applicant Jose Francisco Olea Ortega shall pay for a cell phone and monthly cell phone plan for the child, and the child may telephone the Applicant Jose Francisco Olea Ortega or the Respondent Karla Torres Moreno whenever she wishes. If a parent wishes to communicate with Mia, they may text her to advise her and she may return the call when available.
152If either parent plans a vacation with the said child, they shall give a detailed itinerary at least 15 days before it begins, including the name of any flight earlier and flight times, accommodation, including address and telephone numbers, and details as to how to contact the said child during the trip. Consent of the other parent is not needed for travel during the parent’s scheduled parenting time. If a notarized travel consent is requested, the travelling party shall pay for the costs of same, and the signed consent shall be returned no later than 7 days prior to the departure date.
153The travelling party shall facilitate one phone/video call per day with the Child, at a mutually agreeable time, while travelling with the Child.
154If a parent seeks to travel with the child at times other than their scheduling parenting time, consent shall be obtained in advance. Consent not to be unreasonably withheld. Any missed parenting time shall be made up within 2 months of the travel.
155The traveling parent shall obtain travel insurance for the child in advance of the trip.
156Paragraphs 1, 7, 8, 9, 11, 12, 13, 14, 15, 16, 18, 19, and 20 of the Order of Justice Parent dated September 17, 2018 shall be rescinded.
157Paragraphs 1.5, 1.6, 1.11, 1.13, 1.14, 1.15, 1.16, 1.19, 1.20, 1.21, 1.23, 1.25, 1.28 (g)(h) and 2.8 of the Order of Justice Clay dated December 13, 2016 shall be rescinded.
158All other claims shall be dismissed.
Costs submissions
a. Any party seeking costs may make written submissions to the court, to be submitted no later than 14 days from today with a maximum length of two pages – double spaced, 12 point font, normal margins. Bill of costs and Offer to Settle may be attached to the costs submission without counting to the page limits.
b. Responding submissions may be submitted no later than 14 days after being served with the other party’s submissions and are subject to the same parameters.
c. No reply submissions permitted
d. Parties are to file electronically to Brampton.OCJfamilycourt@ontario.ca
CA to send submissions to chambers upon expiry of the two deadlines.
_________________ Justice Joanne Beasley