COURT FILE NO. D30296/19 DATE: November 3, 2021

ONTARIO COURT OF JUSTICE

B E T W E E N:

M.A.

APPLICANT

• and -

M.E.

RESPONDENT

COUNSEL: Dilani Gunarajah, for the Applicant Acting in Person, for the Respondent

HEARD: October 28, 2021

BEFORE: Justice S.B. Sherr

REASONS FOR DECISION

Part One – Introduction

[1] This trial was about the parenting and support arrangements for the parties’ five children (the children).

[2] Both parties ask that the children have their primary residence with them. They both ask for sole decision-making responsibility for the children and various incidents of parenting. They both sought orders that the other parent have alternate weekend parenting time with the children.

[3] The applicant (the mother) seeks child support from the respondent (the father) retroactive to April 1, 2018. She asks the court to impute income to him. The father asks that child support be determined by the court based on actual income, depending on the final order of the court regarding decision-making responsibility and parenting time.

[4] The parties each filed affidavits and financial statements as their direct evidence. They both provided additional oral evidence and were cross-examined by the other. The mother was assisted by an Arabic interpreter. The mother also called a worker from the Children’s Aid Society of Toronto (the society) who was examined by both parties.

[5] The issues for the court to determine are:

a) What parenting orders regarding primary residence, decision-making responsibility, parenting time, communication and travel are in the children’s best interests? b) When should the support order start? c) What are the parties’ annual incomes for the purpose of the child support calculation? d) Should income be imputed to either party for the purpose of the support calculation? If so, for what years? e) What credits should the father receive for child support paid? f) If the court finds that support arrears are owing by the father to the mother, how should they be paid?

Part Two – Background facts

[6] The mother is 49 years old. The father is 55 years old.

[7] The parties were married on September 1, 2005 in Sudan.

[8] The father sponsored the mother to live with him in the United Arab Emirates.

[9] In 2011, the parties came to live in Canada.

[10] The parties separated in May 2018.

[11] The parties have the following five children:

a) S.E. - 14 years old. b) L.E. – 13 years old. c) A.E. – 10 years old. d) Mus.E. – 8 years old. e) Muj. E. – 5 years old.

[12] The children have lived with the mother since the parties separated, except for a brief period between November 20, 2020 and January 20, 2021, when the mother traveled to Egypt and then quarantined for 14 days upon her return. The children lived with the father during this time.

[13] The father was a bus driver at the TTC until October 28, 2018, when he suffered a workplace injury due to being assaulted while working. He applied for and was approved for Workplace Safety and Insurance Board (WSIB) benefits.

[14] The mother has not worked in Canada. She is on public assistance.

[15] The mother issued this application on March 6, 2019.

[16] The father filed an Answer/Claim on July 26, 2019.

[17] On October 10, 2019, Justice Carolyn Jones made a temporary without prejudice order that the mother have custody of the children and that the father pay child support to the mother starting on November 1, 2019 in the amount of $1,939 each month. This was based on the father’s estimated annual WSIB income of $57,200 that was grossed up to $72,757.

[18] On January 28, 2020, the WSIB stopped its payments to the father after determining that he could return to work on modified duties. The father filed a Notice of Objection to the WSIB decision. However, the WSIB maintained its position that he could return to work. He did not return to work.

[19] The father received Canada Emergency Response Benefits (CERB) and subsequently received Canada Recovery Benefits (CRB). He also started taking a double Masters program at the University of Toronto that he says will be completed in November 2021.

[20] The case was administratively delayed due to the pandemic.

[21] On February 11, 2021, Justice Jones made detailed disclosure orders.

[22] On May 4, 2021, Justice Jones endorsed that the father had not complied with her disclosure order.

[23] On July 29, 2021, Justice Jones placed the case on the trial sittings.

[24] No motion was heard in this case regarding the father’s parenting time or to change the child support order. The parties had an informal agreement that the father would have parenting time with the children on alternate weekends.

Part Three – Primary residence and decision-making responsibility

3.1 Legal considerations

[25] Any proceeding with respect to children is determined with respect to the best interests of the particular child before the court in accordance with the considerations set out in subsection s 24 (2) to (7) of the Children’s Law Reform Act (the Act). The court has considered these factors that are relevant to this case.

[26] Subsection 24 (2) of 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.

[27] A 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 order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615. Also see: 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.

[28] Subsection 24 (3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child.

[29] Subsection 24 (4) of the Act sets out a list of factors for the court to consider related to family violence.

[30] 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.

[31] The 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.

3.2 Positions and narratives of the parties

[32] The mother’s position is that there is no reason to change the children’s primary residence. She points out that the father is not even exercising the alternate weekend parenting time that they had orally agreed upon.

[33] The mother’s position is that she should also have sole decision-making responsibility for the children. She deposed that she has been the parent responsible for major decision-making for the children since the separation and that she has done so responsibly.

[34] The mother said that she is in a new relationship – her partner is at her home on and off. She says that he has a good relationship with the children and is very supportive of her.

[35] The mother stated that she cannot communicate effectively with the father and that any form of joint decision-making responsibility order will not be in the children’s best interests.

[36] The mother made many serious allegations against the father. She deposed that:

a) He was abusive to her, physically, emotionally and financially. b) He has an anger problem. He screams and yells at her. c) He tried to isolate her in Canada and completely controlled their finances. d) He often threatened to send her back to Sudan. e) He refused to assist her with the children – leaving her to raise them alone. f) He would get upset when the children cried. g) She called the police about 10 times due to the way that he was treating her. She did not lay any charges against him. [^1] h) The society was involved with the family many times due to this conflict. i) She would leave the family home with the children several times, but the father and his family would pressure her to return. The father would promise to change. j) On the final day that they were together, the father pushed a huge table on her. The police were called and the father agreed to leave the home. k) He questions the children about what the mother is doing and about her partner. l) He demeans her to the children.

[37] The father denies these allegations and feels that the children should have their primary residence with him and that he should have sole decision-making responsibility.

[38] The father made many allegations against the mother (all of which she denied) such as:

a) The mother “clearly demonstrates all the behaviours and signs of a Sociopathic Narcissistic Individual and an Excessive-Successive-Compulsive-Pathological-Liar Manipulator”. b) The mother “has violent, hysterical, lying anger, unresolved psychological hurt and pain, heavy emotional trauma, adversarial behavioural issues”. c) The mother has falsely accused him of abuse and has manipulated the system to exclude him from their home. d) The mother defrauds government systems. e) The mother is violating Islamic principles because she is living with her partner and has not divorced according to Canadian law. f) The mother is a very poor role model for the children. g) The mother neglects the children’s educational needs. h) The mother does not properly supervise the children. i) The mother’s new partner is her priority and not the children. j) The mother is causing the children emotional harm. k) The mother “has taught the children to lie and to become liars and double-faced individuals by the role-modelling of her lying behaviour all the time”. l) The society is involved with the family because of the mother’s poor parenting.

[39] He father feels that he can better meet the children’s needs since he is a university graduate and is about to graduate from a double Masters program. He feels that he can be a better role model for the children. He testified, “I can do better than her”.

[40] The father is very concerned about the mother’s new partner and was upset that the mother has provided him with little information about him. He was upset that the children have called the new partner Dad – it is his role to be their father.

[41] The father believes that he is a better role model for the children than the mother.

[42] The father put forward an alternative position of sharing everything about the children with the mother “50/50”.

3.3 Analysis

[43] The court finds that it is in the best interests of the children to continue to have their primary residence with the mother and that she have sole decision-making responsibility for them.

[44] This was not a difficult decision.

[45] The children have been in the primary care of the mother for over three years, with the exception of two months. The court finds that she has provided the children with a stable and secure home and has made responsible decisions for them. [^2]

[46] The father’s allegations of inadequate parenting by the mother were not supported by the society worker or by any other evidence. Some of his allegations were unrelated to parenting issues and some, due to the level of vitriol, gave the court more concern about him than it did the mother.

[47] The society worker testified that the society has been involved with the family, off and on, since 2011, primarily due to domestic conflict between the parties. The society recently became involved with the family again because L.E. expressed suicidal thoughts at school. The society verified a risk of emotional harm to L.E., due to the conflict between the mother and the father.

[48] The society worker indicated that the society is providing services for L.E. and the family and that the mother has cooperated and has been receptive to those services.

[49] The society worker testified that she believes that the mother is meeting the children’s needs. The children have reported no concerns to her about the mother’s care of them. The mother, in her trial affidavit, provided a thorough description of how she is meeting the children’s needs.

[50] The father led no independent evidence to indicate that the children’s medical, social or educational needs are not being met by the mother.

[51] The mother said that the father saw the children on alternate weekends until she left the country on November 20, 2021. She said that after the children returned to her care on January 22, 2021, the father chose not to exercise his parenting time for four months. She said that he saw the children for one weekend in May and in June, only came to her door one time to speak to S.E. briefly. She said that he next took the children for the first weekend in October. The next weekend, she said that he knocked on her door without any notice. S.E. refused to go with him, but the other children spent the day with him. He also brought the children Halloween costumes on the day before the trial.

[52] The court finds that the mother’s specific evidence about the father’s parenting time is very credible. It was not seriously contradicted by the father. The father deposed that since 2018 he has seen the children every second or third weekend to the best of his ability. He also has spent extended time with them during the winter school break and during the summer. The father testified that “this year due to COVID, I could not move them as much”.

[53] If the father cannot exercise his parenting time reliably and consistently, it is not in the children’s best interests to have their primary residence with him.

[54] Without even having to find that any of the mother’s serious allegations against the father are true, the court had the following concerns about him that dictate against finding that the children should either have their primary residence with him or that he have sole decision-making responsibility for them:

a) He presented as a very controlling person at trial. He constantly lectured the mother and her counsel. He expressed that he was upset with the mother’s new partner living in her home, saying that she did not ask for his consent first. He is seeking a restraining order against “the stranger living in the children’s house”. [^3] b) He has used money as a means to control the mother since their separation. He has rarely paid court ordered support. Instead, he has made some direct payments for groceries or to buy gifts for the children. The father expressed concern that the mother does not spend the government money she receives on the children. He feels that any support he pays to her will not go to the children. He wants to control how it is directed. Financially 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. Jama v. Mohamed, [2015] ONCJ 619; T.P. v. A.E., 2021 ONSC 6022; McBennett v Danis, 2021 ONSC 3610; Pinda v Pankiw, 2018 BCSC 190. c) He was disrespectful and condescending to the mother at trial. This was not surprising after having read his trial affidavit. He was self-aggrandizing about his qualities as a father and as a role model. He claimed that he can financially support the children (notwithstanding his non-compliance with the temporary support order) much better than the mother. Near the end of the trial, he pronounced to the mother, “I forgive you”. d) He was far more focused on the mother’s relationship with her new partner at trial than the children’s needs. He was determined to prove that they were not legally married (the mother described it as a religious marriage) to establish that she is an unfit role model for the children. e) The father’s comments about the children in his trial affidavit also revealed a lack of respect for them. He called them “liars and double-faced individuals”. f) His explanation about why he has exercised so little parenting time with the children in 2021 made little sense. Pandemic restrictions were more pronounced in 2020 than in 2021. g) He showed an incredible lack of insight into his role in the emotional distress his children are having due to the domestic conflict. He disputed the society worker’s evidence that L.E. had expressed suicidal ideation. He said that L.E. would have told him this. The father solely blamed the mother for any distress the children had. This was not supported by the society worker. This appeared to be part of a pattern of externalizing blame on to other people. He claimed that his two prior lawyers did not advocate for him well enough – he could do better on his own. He is in a dispute with the WSIB and the TTC and described how they had denied him due process.

[55] Mutual 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. That does not exist here. The court observed the interaction between the parties. Given the allegations they made against each other in their affidavits, it was not surprising to observe that their communication is extremely poor.

[56] The parties have had considerable police and society involvement. Families that require constant intervention by Children’s Aid Societies and the police due to high conflict are poor candidates for joint decision making responsibility or parallel parenting orders. See: S.A. v. Y.M., 2020 ONCJ 147; A.R. v. M.C., 2021 ONCJ 147.

[57] In the case of S. (S.) v. K. (S.), 2013 ONCJ 432 (Ont. C.J.) this court wrote that courts should assess the dynamics of a family when determining if a joint decision making responsibility order is appropriate. Particularly, the court should examine if the granting of such an order is:

a) more or less likely to de-escalate or inflame the parents' conflict; b) more or less likely to expose the child to parental conflict; and, c) Whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders for the purpose of asserting control over their former spouse and children, tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a joint custody order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.

[58] This is not a case where some allocation of joint decision-making responsibility is required because the mother is attempting to exclude the father from the children’s lives or to preserve the balance of power. See: Roloson v. Clyde, 2017 ONSC 3642. The greater concern here is that the father is attempting to control the mother’s life and that a joint-decision making responsibility order would increase the children’s exposure to parental conflict.

[59] The court finds that any allocation of decision-making responsibility to the father is not in the children’s best interests.

Part Four – Parenting time

4.1 – Legal considerations

[60] In determining parenting time the court must consider the relevant best interests contained in subsection 24 (2) to (7) as described in Part Three above.

[61] Subsection 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.

[62] In Knapp v. Knapp, 2021 ONCA 305, the court set out that there is no presumption that maximum parenting time equates with equal-parenting time. Every family, it wrote, is different and the court must focus on the child’s best interests in determining the appropriate parenting time order.

[63] In O'Brien v. Chuluunbaatar, 2021 ONCA 555, the court noted at paragraph 49 that the maximum contact principle has been replaced by subsection 24 (6) of the Act. On an appeal of a case heard before the March 1, 2021 amendments to the Act, the appeal court found that it did not have to consider the maximum contact principle – but, in any event, the trial judge had properly considered it.

[64] In Bressi v. Skinulis et al, 2021 ONSC 4874, Justice Andrea Himel wrote as follows:

[21] There is no presumption in favour of joint parenting and the term “maximal contact” is no longer found in the CLRA. The legislation states in that: “in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.”

[22] Clearly the idea of a presumption in favour of one type of parenting order is anathema to the court’s unrelenting focus on the child’s “best interests.” The most one can say is, all things being equal, the child deserves to have a meaningful and consistent relationship with both of their parents.

[65] Subsection 24 (6) of the Act does not override the best interests test contained in section 24. Rather, it means that a child should have as much time as possible with each parent consistent with the child’s best interests. The principle is subject to what is in the best interests of the children, given their ages, temperaments and stages of development. See: Ammar v. Smith, 2021 ONSC 3204.

[66] An equal-parenting time plan requires a high level of communication and coordination between the parties, particularly when the child is very young. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child. See: L.B. v. P.E., 2021 ONCJ 114; L.I.O. v. I.K.A., 2019 ONCJ 962.

4.2 Analysis

[67] The father’s alternative proposal of equal-parenting time is not in the children’s best interests. The communication between the parties is far too poor. The parties would need to communicate much better to effectively coordinate the health, academic and social needs of five children. The two older children will also be starting counseling soon.

[68] The father isn’t even exercising the parenting time available to him. That is hardly the basis to increase it.

[69] Although the court has been critical of the father, it is in the best interests of the children to spend meaningful parenting time with him if he exercises it consistently and responsibly. The father has positive qualities. He is educated and intelligent and places value on his children’s education. He takes pride in his heritage and can teach the children about their religion and culture.

[70] The mother submits that the father should have alternate weekend parenting time. This has been the parties’ arrangement for several years. The court sees no reason to change this and hopes that the father will begin to exercise it more consistently. The court will also make an order respecting additional holiday parenting time with the children.

Part Five – Other parenting orders

[71] Section 28 of the Act sets out the different types of parenting orders that a court can make. The court’s powers under the Act are broad and purposive. It can allocate parenting time and decision-making authority between the parents, impose a schedule, provide for the means of communication to be used by the parents, and make any other orders that it considers appropriate to secure the children’s best interests. See: S.S. v. R.S., 2021 ONSC 2137

[72] The court will make several of the communication orders sought by the mother in her draft order. Many of these terms were also sought by the father in his draft order. These terms are necessary to protect the children from conflict.

[73] The father should not come to the mother’s home outside of his parenting times. He also should not be coming to her door – there is too much opportunity for conflict.

[74] The mother proposed other reasonable parenting terms in her draft order that are in the children’s best interests and will be included in the final order. These include:

a) She shall not change the children’s residence outside of Toronto without the father’s consent or court order. b) Giving the father the right to obtain third party information about the children. c) Terms for virtual parenting time. d) That neither will travel with the children outside of Canada without a court order or the written consent of the other party (the court will add that the consent is not to be unreasonably withheld). [^4]

Part Six – Child Support

6.1 Retroactive support

6.1.1 Positions of the parties

[75] The mother’s position is that the father should pay child support retroactive to April 1, 2018. She asks the court to apply the Child Support Guidelines (the guidelines) table amounts of child support based on the father’s actual income in 2018 and 2019.

[76] The father asks that no retroactive support be ordered.

6.1.2 Legal framework

[77] The court’s authority to make retroactive support orders is contained in clause 34 (1) (f) of the Family Law Act. This clause reads as follows:

Powers of court

34 (1) In an application under section 33, the court may make an interim or final order,

…….(f) requiring that support be paid in respect of any period before the date of the order;

[78] Any support claimed after an application is issued is prospective support, not retroactive support. See: Mackinnon v. Mackinnon.

[79] In Colucci v. Colucci, 2021 SCC 24, the court set out the present framework that should be applied for retroactive applications to increase support in paragraph 114 as follows:

a) The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers. b) Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor. c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice. d) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors continue to guide this exercise of discretion, as described in Michel v. Graydon, 2020 SCC 24. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income. e) Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

[80] This framework in Colucci addresses a request to retroactively increase the support contained in an order or an agreement. This court finds that it should also be applied, with necessary modifications, for an original request for retroactive support.

[81] In an original application for retroactive support, there will be no need to meet the threshold requirement of establishing a material change in circumstances, as required in Colucci. The first step will be to determine the presumptive date of retroactivity as described in Colucci. The second step will be to determine if the court should depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors [^5] will guide the exercise of that discretion, as described in Michel v. Graydon, 2020 SCC 24. The third step will be to quantify the proper amount of support for each year since the date of retroactivity, calculated in accordance with the guidelines.

[82] Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. (Michel - par. 25).

[83] Retroactive child support is a debt; by default, there is no reason why it should not be awarded unless there are strong reasons not to do so (Michel – par. 132).

[84] Retroactive awards are not exceptional. They can always be avoided by proper payment. (D.B.S. - par. 97).

[85] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair (D.B.S. - par. 121).

[86] The date of effective notice is not relevant when a payor parent has engaged in blameworthy conduct (irrespective of the degree of blameworthiness) (Michel - par. 36).

6.1.3 Analysis

[87] The mother issued her application on March 6, 2019, so a retroactive support analysis is required.

[88] In her application, the mother said that the parties separated in April 2018. At trial, she said it was in July 2018. The father had more specific evidence regarding the date of separation – May 5, 2018. This date was memorable to him as it was the date that the police forced him to leave his home. The court finds that the date of separation was May 5, 2018.

[89] The mother provided no evidence that she raised the issue of paying child support with the father prior to bringing her application. The court finds that the date of effective notice is the same date as the date of formal notice – March 6, 2019, when she issued her application. This is the presumptive date when child support should start.

[90] The next step is to determine if the court should depart from the presumptive date of retroactivity because the result would otherwise be unfair. To do this, the court must look at the D.B.S. factors as explained in Michel.

[91] The first factor is delay. The Supreme Court of Canada had the following to say about delay in Michel:

a) We should look at whether the reason for delay is understandable, not whether there was a reasonable excuse for the delay. The latter consideration works to implicitly attribute blame onto parents who delay applications for child support (par. 111). b) A delay, in itself, is not inherently unreasonable and the mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted (par. 113). c) Rather, a delay will be prejudicial only if it is deemed to be unreasonable, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made. A delay motivated by any one of the reasons set out below should generally not be understood as arbitrary within the meaning of D.B.S.: i) Fear of reprisal/violence from the other parent. ii) Prohibitive costs of litigation or fear of protracted litigation. iii) Lack of information or misinformation over the payor parent’s income. iv) Fear of counter-application for custody. v) The payor leaving the jurisdiction or the recipient unable to contact the payor parent. vi) Illness/disability of a child or the custodian. vii) Lack of emotional means. viii) Wanting the child and the payor to maintain a positive relationship or avoid the child’s involvement. ix) Ongoing discussions in view of reconciliation, settlement negotiations or mediation. x) The deliberate delay of the application or the trial by the payor. These situations raise issues of impracticability and inaccessibility to justice on the one hand, and on the other fear and danger (par. 86). d) It is generally a good idea to seek child support as soon as practicable, but it is unfair to bar from parents from applying for the financial support they are due because they put their safety and that of their children ahead of their financial needs or because they could not access justice earlier (par. 87).

[92] The mother’s delay in bringing the application was reasonable, taking into account a generous appreciation of the social context in which her decision to seek child support was made. The following facts support this:

a) The mother is an unsophisticated litigant. Her English is poor. She requires an Arabic interpreter. She had no experience in the family court system. b) It was understandable why the mother might have been hesitant to engage in the court system with the father. They had a very conflictual relationship. She knows the father well and knew that he would make the court process very difficult for her. This has been borne out. c) The mother was struggling after the separation to support five children on her own. She had no means to support herself and went on public assistance. She did not have the emotional means to come to court right away. d) The father had always controlled the family’s finances and did not disclose financial information to the mother.

[93] The second factor is conduct. The court had the following to say about this in Michel:

a) Courts have been too hesitant to apply the expansive definition of blameworthy conduct set out in D.B.S. out of fear that any change in the payor’s income which was not disclosed to the recipient would constitute blameworthy conduct (par. 116). b) The failure to disclose actual income, a fact within the knowledge of the payor, is a failure of a significant obligation and is often at the root cause of a delayed application (par. 116). c) Courts should not take a subjective approach to blameworthy conduct and try to ascertain intention. Intent can be a basis on which to increase blameworthiness, but the primary focus needs to be on the payor’s actions and their consequences (par. 118).

[94] The father has engaged in blameworthy conduct. The following facts support this:

a) He did not pay support anywhere close to what the children were entitled to pursuant to the guidelines. The father is an intelligent and educated man. He knew or ought to have known the support amounts he should have been paying to the mother. He chose not to pay this. Instead, he chose to exercise control over the mother by occasionally making direct payments for groceries and other items for the children. He had no intention of giving the mother money to spend. b) He did not provide financial disclosure in a timely manner. This was noted in previous endorsements of Justice Jones. c) He did not provide the mother with relevant WSIB information despite court orders to do so. [^6] He was resistant to doing this – he felt that it was private. d) He did not provide his full income tax returns– only notices of assessment. This made it difficult to assess how his line 1500 income in his tax returns was arrived at in 2019 and 2020.

[95] The third factor is the circumstances of the children. Michel set out the following about this factor:

a) If there has been a hardship present during their childhood, or if the child needs funds at the time of the hearing, this weighs in favour not only of an award, but also of extending the temporal reach of the award (par. 120). b) There are plenty of circumstances where a parent will absorb the hardship that accompanies a dearth of child support to prioritize their child’s well-being. There is absolutely no principled reason why this parent should receive any less support as a result of choices that protect the child (par. 123). c) The fact that the recipient will indirectly benefit is not a reason to refuse to make the award of support (par. 123).

[96] The court finds that the circumstances of the children have been disadvantaged due to the father’s failure to pay proper support. The children and the mother have been supported by public assistance. The father, and not the taxpayer, should have been supporting his family.

[97] The fourth factor is hardship. The court in Michel made the following observations about this factor:

a) If there is the potential for hardship to the payor, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of hardship (par. 124). b) In all cases, hardship may be addressed by the form of payment (par. 124). c) While the focus is on hardship to the payor, that hardship can only be assessed after taking into account the hardship which would be caused to the child and the recipient parent from not ordering the payment of sums owing but unpaid (par. 125). d) It must be taken into account that the payor had the benefit of the unpaid child support for the full time in which it was unpaid and such monies may have funded a preferred lifestyle or the very purchase of property which may now need to be sold (par. 125). This is a crucial part of the equation (par. 126).

[98] A large retroactive order will cause hardship to the father. He is not working. However, the following factors reduce the weight that the court will give to this factor:

a) The father has engaged in blameworthy conduct. b) The mother and the children would suffer hardship if retroactive support is not paid. c) The father was able to afford to take his double Masters programs in 2020 and in 2021 while the children were not supported by him. He had the benefit of the unpaid support. d) Any hardship to the father can be addressed by permitting him to pay the retroactive support over time.

[99] Taking into account all these factors, the court will exercise its discretion and order support retroactive to June 1, 2018 – just after the parties separated.

6.2 The father’s income

6.2.1 2018 and 2019

[100] The father did not file his income tax returns. This made the assessment of his income very difficult for 2018 to 2020, as his notices of assessment did not particularize the sources of his income.

[101] The father’s 2018 notice of assessment showed that he earned $104,760. The father deposed that this was not his true income and that a “proper review of his income is due”. He provided the court with no evidence that this was not his income. The court will use the amount set out in his notice of assessment to calculate his 2018 income for support purposes. The monthly guidelines table amount for five children at this income was $2,693. This will be ordered starting on June 1, 2018.

[102] The father’s 2019 notice of assessment showed total income of $90,635. This included $13,031 from RRSP withdrawals.

[103] The father asks that his RRSP withdrawal not be included in his 2019 income as it was non-recurring income. The father did not explain what he used this for in 2019. However, it appears that this may have been used to pay for his expenses and legal counsel for this case.

[104] RRSP income is presumptively part of a spouse’s income for child support purposes. That is because section 16 of the guidelines provides that a person’s annual income for child support purposes is determined using the sources of income set out under the heading “Total income” on the T1 tax form. RRSP income is included as part of “Total income” on the T1 tax form: See Fraser v. Fraser, 2013 ONCA 715, at para. 97.

[105] However, the inclusion of RRSP proceeds is not mandatory and the court has the discretion in appropriate circumstances to do otherwise. Subsection 17 (1) of the guidelines provides this flexibility. See: Ludmer v. Ludmer, 2014 ONCA 827.

[106] Several courts have not included RRSP withdrawals for the purposes of child support where it was received on a one-time basis for a specific purpose. See: Foley v. Weaver, 2010 ONSC 4560; J.C.M. v. K.C.M., 2016 ONCJ 475; Zigiris v. Foustanellas, 2016 ONSC 7528.

[107] The court will exercise its discretion and not include the father’s RRSP withdrawals of $13,031 in his 2019 income. In exercising its discretion, the court considered that this was a one-time withdrawal and a large portion of the proceeds were likely used for his legal fees. The court also considered that this order will create substantial arrears that the father has no ability to pay at this time – even without the inclusion of the RRSP proceeds in his 2019 income.

[108] The non-inclusion of the father’s RRSP proceeds leaves him with an income balance of $77,604 for 2019.

[109] The father’s evidence was that he was on WSIB during the entirety of 2019. [^7] However, it appears that he only received about $57,200 in WSIB benefits. [^8] This leaves a balance of $20,404 of unexplained income. This income could be from short-term disability benefits, employment income or even back payments of WSIB to October 28, 2018. There is no way to know since the father did not provide his 2018 income tax return.

[110] The court will treat the $20,404 balance as taxable income and not gross this amount up as the most likely explanation is that these were either taxable short-term benefits or income paid to the father. [^9]

[111] The father’s WSIB income will be grossed up since it is net of tax. A fundamental principle is that the court must estimate the actual means which the parent has available for child support. The goal is to achieve consistency between payors who pay less income taxes and therefore have more funds available with which to pay support. See: Riel v. Holland, [2003] O.J. No. 3901 (CA); Orser v. Grant, [2003] O.J. No. 1669 (SCJ); Sarafinchin v. Sarafinchin, [2000] O.J. No. 2855 (SCJ). The father acknowledged that this should be done in paragraph 30 of his trial affidavit.

[112] A software analysis, that will be attached to this decision, shows that the father’s 2019 income, after the WSIB payments are grossed-up was $100,651. The guidelines table amount for five children at this income in 2019 was $2,624 each month. This amount will be ordered for 2019.

6.2.2 Positions of the parties about the father’s income since the start of 2020

[113] The father asks the court to use his actual income since January 1, 2020 to assess his support obligation.

[114] The father’s 2020 income as reflected in his notice of assessment was $35,596. He did not provide his income tax return, so it is difficult to determine how that figure was arrived at. The father deposed that he was in receipt of CERB and then CRB payments for most of 2020. He also would have received some WSIB payments.

[115] The father says that his only source of income in 2021 has been from CRB payments. This is paid at the annual rate of $26,000. However, the CRB program has ended.

[116] The father testified that he has had barely enough money to support himself and this is why he has been unable to pay the support ordered by Justice Jones.

[117] The father deposed that on January 30, 2020, the WSIB wrote to him that it had determined that he was able to return to work at the TTC on modified duties and that he would no longer be entitled to benefits. The father disagreed with this decision, feeling that he was not medically ready to return to work and could not perform the modified duties. The father said that he had suffered injuries to his head when assaulted, including a concussion and serious injuries to his face.

[118] The father filed a Notice of Objection to this decision, but the WSIB maintained its position. The father deposed that he plans to appeal this decision. He has still not done this.

[119] The father said that he decided to return to school, while he gathered the necessary information to fight the WSIB decision. He has taken a double Masters program at the University of Toronto. He deposed that he is taking Information Science, Archival Science, Information Management and Knowledge Management. He says that the program includes Museum Studies. The father expects to complete these programs in November 2021.

[120] The father said that his hope is to win his WSIB appeal and with his new degrees return to the TTC in a management position and earn far more than he did as a bus driver. Given that he has not even started an appeal this plan is highly speculative and appears to be unrealistic.

[121] The mother’s position is that the father is deliberately unemployed. She says that he could have returned to work at the TTC and income should be imputed to him in the amount he had earned there in 2018 ($104,760) from January 1, 2020 onwards. She says that he has provided no medical evidence that shows he cannot work and has provided no job search list of efforts to find work.

6.2.3 Legal considerations for imputing income

[122] 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. See: Drygala v. Pauli, [2002] O.J. No. 3731(Ont. CA).

[123] The Ontario Court of Appeal in Drygala v. Pauli 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, the needs of the child or reasonable health needs?
3. If not, what income is appropriately imputed?

[124] The 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.).

[125] Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.

[126] Absence 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] O.J. No. 417, (Ont. S.C.); T.L. v. D.S., 2019 ONCJ 809.

[127] The 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.

[128] Once 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, at paragraph 23. It must be reasoned, thoughtful and highly practical: See: Hagner v. Hawkins, (Ont. S.C.) at paragraph 19.

[129] 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] O.J. No. 453, (Ont. Fam. Ct.).

[130] The salary level earned prior to quitting a job was imputed to the payor in Thompson v. Gilchrest, 2012 ONSC 4137 and in Lindsay v. Jeffrey, [2014] ONCJ 1.

[131] It is not reasonable for a payor to return to school and not pay support, unless it is justified by a sufficient increase in earning ability that will benefit the children. See: Carter v. Spracklin, 2012 ONCJ 193, [2012] O.J. No. 1533 (OCJ); Ffrench v. Williams, 2016 ONCJ 105.

[132] The onus is on the payor parent to justify the decision to reduce their income. The payor cannot just present the income they are earning. The payor’s previous income is a rational basis on which to impute income, as it is the amount that the payor would have continued to earn but for their decision to leave their job: See: Olah v. Olah, Laing v. Mahmoud, 2011 ONSC 4047, 2011 ONSC 4047.

[133] The payor must prove that any medical excuse for being underemployed is reasonable. See: Rilli v. Rilli, [2006] O.J. No. 4142 (SCJ.).

[134] Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his/her reasonable health needs justify his/her decision not to work. See: Cook v. Burton, [2005] O.J. No. 190 (SCJ) and Stoangi v. Petersen, [2006] O.J. No. 2902 (SCJ).

[135] In Davidson v. Patten, 2021 ONCJ 437, Justice Carole Curtis set out that a party resisting a claim for imputation of their income based on medical reasons should provide a medical report setting out at least the following information:

i. Diagnosis; ii. Prognosis; iii. Treatment plan (is there a treatment plan? And what is it?); iv. Compliance with the treatment plan; and, v. Specific and detailed information connecting the medical condition to the ability to work (e.g, this person cannot work at the pre-injury job; this person cannot work for three months; this person cannot work at physical labour; this person cannot return to work ever).

[136] Support payors must use reasonable efforts to address whatever medical limitations they may have to earn income. This means following up on medical recommendations to address these limitations. See: Cole v. Freiwald, 2011 ONSC 3654, [2011] O.J. No. 3654, per Justice Marvin A. Zuker, paragraphs 140 and 141.

[137] The receipt of WSIB benefits is not sufficient proof of one’s inability to work for support purposes. See: Tyrrell v. Tyrrell, 2017 ONSC 6499 (SCJ). The court cannot take judicial notice that because a person is on WSIB benefits that he or she is unemployable. Nor can it delegate the important and complex determinations of employability and income earning capacity to unknown bureaucrats applying unknown evidence to unknown criteria. See: Abumatar v. Hamda, 2021 ONSC 2165.

[138] The third question in Drygala v. Pauli, 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 enjoyed 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.

[139] In Samaroo v. Monasar, 2016 ONCJ 47, where a payor had unjustifiably quit his job in 2014 and had not found comparable employment by the time of trial, the court decided to maintain the payor’s support obligation from the time he quit his job, and only reduce it beginning in February, 2016. This was determined to be a fair balancing of the consequences of the payor’s decision to quit his job.

[140] In Malcolm v. McGee, 2017 ONCJ 357, where a payor was fired from their job due to his misconduct, the court wrote at paragraphs 46 and 47:

[47] The court must determine how to allocate the consequences of the father’s poor decisions. The mother argues that the father should bear the entire cost of these decisions – the child should not receive any less support.

[48] The court agrees with the mother to some extent. However, at a certain point, an existing order can become unrealistic and unjust due to a payor’s changed circumstances – no matter if those changed circumstances were caused by the payor’s misconduct. The court should conduct a contextual examination of all the circumstances in determining the support amounts it should order.

6.2.4 Analysis

[141] The court finds that the father has been deliberately unemployed. He has chosen not to work.

[142] The next step is to determine if the father has a justifiable reason for not working. The father claims that he was medically unable to return to work. The father made this analysis very difficult by failing to provide any medical evidence. He said that it is all in the WSIB file but he refused to produce it to the mother because he felt that it was private.

[143] The onus was on the father to produce this medical evidence. An adverse inference is drawn against him for failing to do so. The father did not prove that he was unable to work at all for medical reasons starting in February 2020. The court accepts that he did suffer injuries on the job and that he may have had some medical impairments that adversely affected his ability to work full-time, but cannot accept his evidence that he could not have returned to work at least part-time at the TTC, on modified duties, or have found other work. The court notes that the father has been able to participate in a rigorous education program. This indicates that he was capable of performing many jobs.

[144] The father told the court that he discontinued his treatment after the WSIB decision. This leads to an inference that his medical issues have improved, or if they have not, that he has not taken reasonable steps to treat his injuries so that he can return to work.

[145] The court finds that the father’s decision not to work and instead take a double Masters program while he pursued his WSIB case was not reasonable. His educational aspirations cannot come at the expense of his five children who need support now. The father did not clearly set out what employment benefits this program would have for him in the future.

[146] The court finds that it would have been more reasonable for the father to work and upgrade his education part-time.

[147] It does not escape the court’s notice that the father’s decision to not look for work was made in the context of a court case where he was very resistant to paying the mother child support.

[148] It also does not escape the court’s notice that when it came to the parenting issues, the father trumpeted that he was far more able to earn income and support the children than the mother. It left the court with the impression that if the court had made the order for the children’s primary residence to be with the father, he would have been able to return to work very quickly.

[149] This leads to the third step, what income should be imputed to the father?

[150] In the absence of the WSIB file, the court has no way of knowing what modified employment was offered to the father and what his hours and rate of pay would have been. The father was evasive about this. He claimed that no modified duties were ever proposed to him. He later said that he was medically incapable of performing the modified duties – it was too soon. The father was the only person who had access to this information. The court draws an adverse inference against him due to his failure to provide it.

[151] The court will not impute the father’s 2020 income at $104,760, as requested by the mother. The court accepts that the father had some medical limitations when his WSIB payments were terminated in February 2020 and will not impute full-time income.

[152] The court imputes annual income to the father at $52,000 starting on January 1, 2020. The court finds that the father could have earned at least this amount of money by working at modified duties at the TTC or by finding employment elsewhere. This imputed income is just under 50% of what he had been earning on a full-time basis at the TTC and is a modest imputation of income given that the father failed to provide any of the relevant disclosure to make a more accurate determination.

[153] The guidelines table amount at this income for five children is $1,383 each month.

[154] The court strongly considered increasing the income imputed to the father starting in 2021, on the basis that with improvements in his medical situation he would be able to work more hours.

[155] However, the court realizes that the father has put himself into a very bad financial predicament due to his poor choices. He is unemployed, and since he has not gone back into the workforce it may be challenging for him to find employment that pays him in excess of $52,000 annually. As this court set out in Malcolm, supra, at a certain point, an order can become unrealistic and unjust due to a payor’s changed circumstances – no matter if those changed circumstances were caused by the payor’s misconduct. The court needs to determine how to fairly allocate the consequences of the father’s poor decisions.

[156] The court will not increase the amount imputed to the father in the years subsequent to 2020. The court finds that the imputation of his annual income at $52,000 fairly allocates the consequences of his decision not to work. The order will provide that the father is to immediately notify the mother if he obtains employment, with full details of that employment. The mother can then assess whether she will return to court to increase support.

6.3 Support credits

[157] The mother’s evidence is that the father has not paid support directly to her. She said that he buys the children items directly and at times has bought groceries for them – perhaps $60 per month. She said that he paid for swimming lessons in May 2019 and paid for one Bell telephone bill.

[158] The father claimed that he has paid for far more groceries than the mother claims. He provided many Costco bills. He did not itemize what groceries were for him and which were for the mother and the children. The father spent over $100 for Halloween costumes on the day before the trial.

[159] In the absence of clear proof of support paid and considering his financial control of the mother, his resistance to paying financial support and his failure to provide full disclosure, the court will only provide the father with minor support credits.

[160] The father will be credited with support paid of $120 each month starting on June 1, 2018 until the end of September 2019, when Justice Jones made her temporary order. In addition, the father will be credited for $864 for his payment for the children’s swimming program in 2019.

[161] These credits total $2,784, calculated as follows:

June 1, 2018 to September 30, 2019 - $120 each month for 16 months = $1,920 Swimming program = $864 Total credit - $2,784

[162] The father was represented by experienced counsel as of October 1, 2019. He should have known that support was to be paid to the Family Responsibility Office (the Director). The father deposed that he has made three of the support payments ordered by Justice Jones on October 10, 2019. If so, these payments will have been recorded by the Director. After October 1, 2019, the father is to only be credited with support paid as reflected in the Director’s records.

6.4 Payment of arrears

[163] This decision will result in significant support arrears. [^10]

[164] The court is very aware that the father does not have this money available to him at this time. The court will give him time to get back to work so that he can start paying towards the support obligation that he has accumulated.

[165] The father will be permitted to pay these arrears as follows:

a) $2,000 by the end of 2021. b) $10,000 on July 1st of each year, starting in 2022 until the arrears are paid in full.

[166] However, the entire amount of arrears then owing shall immediately become due and payable if the father is more than 30 days late in making any lump sum payment or is more than three months in arrears of ongoing support payments from this date.

Part Seven – Conclusion

[167] A final order shall go on the following terms:

a) The children’s primary residence shall be with the mother. b) The mother shall have sole decision-making responsibility for the children. c) The father may obtain information directly from the children’s schools, doctors and other service providers. d) The mother shall not change the children’s residence outside of Toronto without the prior consent of the father or prior court order. e) Neither party shall travel with the children outside of Canada without prior court order or the written consent of the other party, such consent not to be unreasonably withheld. f) The parties will provide and keep each other updated with their email addresses, home addresses and a phone number where they can be reached at all times. g) All communication between the parties will be in the form of an email or text and shall be limited to discussions about the children. They are to only telephone each other if there is an emergency regarding the children. h) The children will be permitted to call, text or virtually contact each parent. i) Neither parent shall disparage the other to the children. j) The father shall have parenting time with the children as follows: i) Alternate weekends from Fridays at 6 p.m. until Sundays at 6 p.m., extending until Mondays at 6 p.m. if the weekend falls on a statutory holiday. ii) The children shall spend equal time with the parents during the winter school break. The children shall spend the first half of the winter school break with the mother and the second half with the father in odd-numbered years. The children shall spend the first half of the winter school break with the father and the second half with the mother during even-numbered years. iii) The children shall spend the March school break with the father in even-numbered years and with the mother in odd-numbered years. iv) The father shall have two weeks of exclusive parenting time with the children during the summer. He shall advise the mother in writing by May 15 each year what weeks he is choosing. v) The children shall spend Father’s Day with the father if it would otherwise be the mother’s weekend with the children. He will have the children starting at 10:00 a.m. on Father’s Day. vi) The children shall spend Mother’s Day with the mother if it would otherwise be the father’s weekend with the children. She will have the children from 10:00 a.m. on Mother’s Day. vii) The holiday schedule takes priority over the regular schedule. viii) Such further and other parenting time as the parties may agree. k) The father shall exchange the children in front of the mother’s residence. He is not to come to her front door. l) The father is only to come to the mother’s home on his designated days of parenting time. m) The father shall pay the mother child support of $2,693 each month starting on June 1, 2018. This is the guidelines table amount for five children based on the father’s income of $104,760. n) The father shall pay the mother child support of $2,624 each month starting on January 1, 2019. This is the guidelines table amount for five children based on the father’s assessed income of $100,651 as calculated in this decision. o) The father shall pay the mother child support of $1,383 each month starting on January 1, 2020. This is the guidelines table amount for five children based on the father’s imputed income of $52,000. p) The father is to be credited with support paid to the mother of $2,784 as set out in this decision together with any other support payments made since October 1, 2019, but only as reflected in the records of the Family Responsibility Office. q) The Family Responsibility Office is requested to change their records in accordance with this order. r) A support deduction order shall issue s) The father will be permitted to pay these arrears as follows: i) $2,000 by the end of 2021, ii) $10,000 on July 1st of each year, starting in 2022 until the arrears are paid in full. However, the entire amount of arrears then owing shall immediately become due and payable if the father is more than 30 days late in making any lump sum payment or is more than three months in arrears of ongoing support payments from this date. t) Nothing in this order precludes the Family Responsibility Office from collecting support arrears from any government source (such as income tax or HST/GST refunds) or any lottery or prize winnings. u) The father shall provide the mother with complete copies of his income tax returns and notices of assessment by June 30th each year. v) The father shall immediately notify the mother when he obtains employment. He shall provide her with the name and address of the employer, his job description, work hours and rate of pay. w) The father shall immediately notify the mother if he successfully appeals the WSIB decision to terminate his benefits and provide her with documentation setting out what benefits he is entitled to and the start date. x) All other claims made by the parties are dismissed.

[168] If either party feels there is a software inputting error for the calculation of the father’s 2019 gross income or that there is a mathematical error in this decision they shall serve and file written submissions by November 15, 2021. The other party will have until November 22, 2021 to respond. The submissions shall not exceed two pages. The submissions are to be either delivered or emailed to the trial coordinator’s office.

[169] If the mother seeks costs, she shall serve and file written submissions by November 17, 2021. The father will then have until December 1, 2021 to serve and file his written response. The submissions shall not exceed 3 pages, not including any bill of costs or offer to settle. They are to be either delivered or emailed to the trial coordinator’s office.

[170] The mother’s counsel shall take out this order. The court thanks her for her professional presentation of this case.

Released: November 3, 2021

Justice S.B. Sherr

Footnotes

[^1]: The father acknowledged that the police were called multiple times. [^2]: The one exception was when she left to Egypt in November 2020 without informing the father in advance and left the children with him. She said that it was an emergency and that she was afraid that he would prevent her from leaving. She handled this poorly. [^3]: This is set out in paragraph 36 of the father’s trial affidavit. The mother’s partner was not served with this claim. In any event, there is no merit to it and it will be dismissed. [^4]: The father proposed the same term in his draft order. [^5]: The Supreme Court in D.B.S. v. S.R.G., 2006 SCC 37 outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that the court raised: 1. Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support. 2. The conduct of the payor parent. 3. The circumstances of the child. 4. The hardship that the retroactive award may entail. [^6]: His only WSIB documentation filed with the court was a letter dated June 4, 2020 explaining why his benefits were stopped. This letter was heavily redacted. [^7]: See paragraph 30 of his trial affidavit. [^8]: This is the amount assessed by Justice Jones in the temporary order and is consistent with the father’s evidence at trial regarding the WSIB benefits that he received in 2019. This amount is also consistent with the line 23600 deductions that are set out in his 2019 notice of assessment (the additional amounts deducted in his line 23600 are likely his automatic personal deductions). [^9]: The fact that there is no corresponding deduction for short-term benefits on the father’s notice of assessment supports this finding. [^10]: By the court’s rough calculation, the arrears will be about $72,000. This calculation is subject to what credits have been recorded in the Director’s records.