Court File and Parties

Date: March 21, 2022 Court File No.: D52592/10

Ontario Court of Justice

Between:

P.I. Acting in Person Applicant

- and -

R.O. Acting in Person Respondent

Counsel for the Children: William Hutcheson, on behalf of the Office of the Children’s Lawyer

Heard: March 17, 2022

Justice: S.B. Sherr

Reasons for Decision

Part One - Introduction

[1] This hearing was about the parties’ motions to change the court’s order dated April 27, 2021 (the existing order), regarding the parenting and child support arrangements for their two children, A., who is fifteen years old, and S., who will turn fourteen years old in May.

[2] The existing order was reached on consent after almost two years of litigation. It includes terms that:

a) The parties have joint decision-making responsibility for the children.

b) A. shall live primarily with the respondent (the father).

c) The applicant (the mother) shall have parenting time with A. every Saturday for a minimum of four hours.

d) S. is to rotate her residence between the parties on a week-about basis.

e) The father is to pay for A.’s orthodontic expenses and 70% of the children’s special and extraordinary expenses pursuant to section 7 of the Child Support Guidelines (the guidelines).

f) The father is to pay the mother a further $1,000 for child support.

[3] The parties both resided in Toronto when the existing order was made. One of the incidents of parenting contained in the existing order provided that any party who intended to undertake a relocation or change of residence was to provide 45 days notice of the relocation to the other party.

[4] On June 19, 2021, the mother advised the father that she was relocating in two days to Wasaga Beach. She told the father that she intended to have the children live with her and attend school in Wasaga Beach in September 2021.

[5] The mother moved to Wasaga Beach on June 21, 2021.

[6] The father sent the mother his formal objection to the proposed relocation of the children on June 24, 2021.

[7] The father issued his motion to change the existing order on June 25, 2021.

[8] The father was subsequently given leave by the court to bring a temporary motion regarding the proposed relocation of the children. The mother brought a cross-motion to change the existing order on a temporary basis, seeking permission to relocate the children to Wasaga Beach and asking for sole decision-making responsibility for them.

[9] The court heard the motions and released its reasons for decision on September 2, 2021. See: P.I. v. R.O., 2021 ONCJ 463. The court dismissed the mother’s motion to change the existing order regarding A. and her request to relocate the children to Wasaga Beach. The court made a temporary order that S. would remain in and go to school in Toronto. If the mother remained in Wasaga Beach, the court ordered that S. would primarily live with the father and have parenting time with the mother on three out of every four weekends.

[10] The mother has remained in Wasaga Beach. S. has primarily resided with the father since September 2, 2021.

[11] The parties both wish to change the existing order on a final basis. They both seek orders for primary residence and sole decision-making responsibility for the children. The mother seeks an order permitting her to relocate the children to Wasaga Beach. Both parties seek a specified parenting schedule for the other, together with incidents of parenting. The father seeks an order that any parenting schedule be subject to the wishes of the children.

[12] The father seeks child support from the mother for both children retroactive to September 1, 2021, including a contribution to A.’s orthodontic expenses. He asks the court to impute income to the mother for the purpose of the support calculation.

[13] The mother is not seeking child support from the father. If the court orders that the children live with the father, she says that she cannot afford to pay child support at this time.

[14] The Office of the Children’s Lawyer, on behalf of the children (the OCL), supports the father’s position regarding the children’s primary residence. A. has been assessed as having a learning disability. The OCL asks that the father have sole decision-making responsibility related to A.’s learning disability and any supportive services that she may require. It submitted that S. should have the same parenting time with the mother as A. presently does – a minimum of four hours each Saturday, pursuant to her views and preferences. For the past two months S. has only agreed to see the mother at the same time as A.

[15] The parties agreed to a focused hearing of the motions to change. The court relied on the affidavits and financial statements filed by the parties in this proceeding, together with the oral evidence given by the mother at the hearing of the temporary motions. The parties were each permitted to give additional oral evidence at this hearing and were cross-examined by the other. The OCL questioned both parties. It was agreed that the OCL could provide the children’s views and preferences to the court at the hearing.

[16] The issues for the court to determine are as follows:

a) Has there been a material change in circumstances affecting or likely to affect the best interests of the children?

b) If so, what parenting orders are in the children’s best interests? In particular:

(i) With which parent should the children have their primary residence?

(ii) If the court determines that one or both of the children should have their primary residence with the mother, should she be permitted to relocate to Wasaga Beach?

(iii) What decision-making responsibility orders should be made?

(iv) What parenting time should be ordered?

(v) What incidents of parenting should be ordered?

c) If the court orders that the children shall primarily reside with the father, what child support orders should be made? In particular: When should the child support obligation start?

(i) What is the mother’s income for support purposes? Should income be imputed to her?

(ii) What, if any, contribution should the mother make towards A.’s section 7 expenses?

Part Two – Brief background

[17] The mother is 34 years old. She is single and has been residing in a home that she owns in Wasaga Beach since June 2021. She operates two small businesses.

[18] The father is 38 years old. He is married and has an 8-year-old child with his wife. They all live together in Toronto. The father is employed as a corporate chef. His wife is a homemaker.

[19] The parties cohabited from 2005 to October 2010.

[20] The parties have been litigating in this court regarding the children, on and off, since 2010.

Part Three – Material change in circumstances

3.1 Legal considerations

[21] Section 29 of the Children's Law Reform Act (the Act) provides the statutory authority for changing a parenting order. It states:

A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child

[22] In L.M.L.P. v. L.S., [2011] SCC 64, the Supreme Court stated that the change must be substantial, continuing and that “if known at the time, would likely have resulted in a different order.” The Supreme Court stated that it must limit itself to whatever variation is justified by the material change of circumstances.

[23] On a motion to change, the court has the option of restricting changing the existing order to address a specific issue, while maintaining its integrity. See: Elaziz v. Wahba, [2017] ONCA 58.

3.2 Analysis

[24] The parties and the OCL agreed that there has been a material change in circumstances affecting or likely to affect the best interests of the children. The court agrees with them.

[25] The father lives in Toronto. The mother lives in Wasaga Beach. A week-about parenting plan for S. is no longer viable.

[26] The deterioration of the mother’s relationship with the children since the existing order was made also constitutes a material change in circumstances.

[27] A. has refused to have overnight visits with the mother since the summer of 2021. She will only see the mother in Toronto for four or five hours at a time.

[28] On two occasions during the summer of 2021, the mother refused to return A. to Toronto, after A. had agreed to overnight parenting time. On the second occasion, A. had only gone to Wasaga Beach after the mother had promised to drive her back. The father had to be called to pick her up both times.

[29] There was an incident in August 2021 where the mother had told A. that she would not take her to Wasaga Beach. However, when she picked up A. she told her that she was taking her to Wasaga Beach. A. became upset. They went to a Bubble Tea in Toronto and argued. A. called the father to pick her up. The mother was upset and left A. alone at the Bubble Tea. The mother acknowledged at the temporary motion that this had happened and said that she had just wanted to provide A. with a surprise. She was disappointed by A.’s response and admitted that she had lost her temper.

[30] S. has also refused to have overnight visits with the mother since mid-January 2022. She is expressing that she will only see the mother on Saturdays for about four hours and only if A. is present.

[31] There was a disturbing incident in mid-January 2022 between S. and the mother while the mother was driving S. to the parenting exchange point. The facts are not in dispute. S. taped the interaction and provided it to her lawyer. The mother was extremely upset because she had just received the father’s amended motion to change seeking child support. The interaction between the mother and S. was filled with profanity against the father and S. despite S. pleading with the mother to stop. [1] The mother told S. to tell the father that if he seeks child support, she will never see her again – that all the father cares about is money.

[32] The child asked the mother to pull over as she did not feel safe with the mother driving in her agitated state. She asked the mother not to put her in the middle, saying, “I am just a child”.

[33] The mother testified in response to this incident that “it is what it is”, that “I was really mad and frustrated” and “I felt the need to freely express myself”. She said that she wanted S. to understand the unfairness of the father asking her for money and that he wanted to financially and emotionally hurt her. She showed little insight at the hearing about S.’s needs, including her need to be protected from adult conflict.

[34] It is concerning that the mother could not regulate her emotions when the matter was before the court and she had already been criticized by the court in its September 2, 2021 decision about her inappropriate conduct towards A.

[35] The mother demonstrated little insight at the hearing into her role in her estrangement with the children, preferring to blame the father.

[36] Communication between the parties has broken down to the point where a joint decision-making responsibility order is no longer in either child’s best interests. The parties no longer seek such an order – even as an alternative claim. This is also a material change in circumstances.

[37] The mother described communication with the father as impossible. She said that they have stopped texting or emailing one another.

[38] The mother presented as being very angry at the father. She believes that he has manipulated the children to make him look like the good parent and her the bad parent. She blames him for the difficulties in her relationship with the children. She believes that this is part of the father’s agenda to obtain child support from her – “this has been part of his scheme for the past three years”. She distrusts him intensely.

[39] The father described his communication with the mother as toxic. He presented a text exchange with the mother from November 2021, when he raised the issue of child support with her that supported his evidence. It read as follows:

Father: Also u haven’t shared any responsibility regarding financial We would need to take the time to go on call this week to sort out the financials and residents. I would need to prepare my documents after for court. When is a good time to chat. Time?

Mother: Both girls will be taken away from you when they test for drugs. Animal. Fuck you loser.

Father: I ask you nicely and this si ur response.

Mother: Child cult shit go to hell and stay there. Nasty as fuck.

Father: Ok, so we are not talking about this then.

[40] The mother testified that she was frustrated and that when she is frustrated, she says a lot of things that are mean, “that is human nature”.

[41] The inability of the parties to communicate effectively has adversely affected A. An assessment was done of A. through her school. It was determined that she has a learning disability. The doctor and the school recommended that the parents agree to the learning disability designation so that A. can access additional supports through her school. The father and A. supported this. However, the mother would not agree. A. has not received these services.

[42] The mother explained that she did not want A. to be stigmatized with a learning disability designation, even if it meant that A. would be unable to obtain the services she requires. The mother also deposed that the father is pressuring people to have the children receive extra labels to make him and his wife look like amazing parents and to portray her as a parent who hasn’t done anything. She is not prepared to let the father get away with this.

[43] The father also testified that A. wants to participate in an Arts program, but the mother has been resistant to this. The court finds that A. should be able to participate in this program if she wants to.

[44] The parties’ inability to communicate effectively has also adversely affected S. She was very distraught about the mother trying to use her to pass messages to the father about child support and the mother’s venomous criticism of the father and his wife. She feels that her mother is unfairly placing her in the middle of the adult conflict. She feels that the mother is not listening to how this distresses her. [2] Her desire to protect herself from her mother’s conduct is understandable.

[45] The court finds, due to the extent of these material changes in circumstances, that it is in the children’s best interests to make a new parenting order, as opposed to trying to patch the existing order with new terms. The analysis of what parenting orders are in the children’s best interests follows below.

Part Four – Primary residence and decision-making responsibility

4.1 Legal considerations

[46] 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.

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

Factors

(3) Factors related to the circumstances of a child include,

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

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

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

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

[48] 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.

[49] Sections 39.3 and 39.4 of the Act set out additional considerations when a parent seeks to relocate a child. The court has considered them.

[50] In considering a child’s best interests, it will often be important to determine if a parent will follow the terms of a court order. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201.

[51] 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.

4.2 Analysis

[52] The evidence is overwhelming that it is in the children’s best interests that they have their primary residence with the father in Toronto and that he has sole decision-making responsibility for them. This finding is made irrespective of whether the mother lives in Wasaga Beach or in Toronto.

[53] The court makes these findings for the following reasons:

a) The children have expressed strong views and preferences to live with the father in Toronto and to have limited parenting time with the mother. Given their age and maturity, this is a very important best interests factor.

b) A. has consistently expressed her views and preferences since the existing order was made to live with the father.

c) S. has consistently expressed that she does not want to move to Wasaga Beach. More recently, she has consistently expressed that she does not want to see the mother without A. present and that she does not want to go to her mother’s home in Wasaga Beach.

d) There is no independent evidence that the father, as alleged by the mother, has manipulated the children’s views and preferences. The children have good reasons for their views and preferences, based on the mother’s anger and inappropriate conduct with them.

e) The mother has allowed her frustration and anger to interfere with her parenting decisions. She has frustrated A. obtaining necessary services through her school. She has placed the children in the middle of parental conflict. She lacks the insight to appreciate the impact of her behaviour on them and how it has adversely affected her relationship with them.

f) The settlement reached on April 27, 2021 was intended to give the children peace and stability. Instead, the mother chose to blow up that stability less than two months later. It was apparent that she was planning to move to Wasaga Beach when she entered into the agreement for the existing order on April 27, 2021. [3] She did not disclose this plan to the father or to the court.

g) The mother did not relocate in accordance with sections 39.3 and 39.4 of the Act, nor in accordance with the existing order, as she did not come anywhere close to providing the father with the required notice or information about the relocation.

h) The mother has refused to pay any child support for the children. She is openly hostile to the idea and has expressed this to S. Financially supporting one’s children in a responsible manner is an important part of being a parent. The failure to do so demonstrates poor judgment and an inability to prioritize the children’s interests. See: 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.

i) The court has no concerns with the father’s judgment. He has made child-focused decisions for the children.

j) The father has provided the children with a stable home. He has responsibly addressed their needs. A. has anxiety issues that are being addressed through the school. She is also on a waitlist to see a therapist at Yorktown Family Services. S. also has some mental health issues and is seeing a counselor and social worker at school. The children are doing well in the father’s care.

k) A change in the children’s residence, community and school would likely be more stressful and disruptive for them than it would for most children due to their issues with anxiety. A., in particular, is currently very anxious about the return to in-school learning.

l) The father’s plan permits the children to remain in their present school where they are comfortable, have friends and have supports that have been arranged. Their teachers are familiar with their needs.

m) The children have close and positive relationships with the father’s wife and their step-brother.

n) The children love their mother but have a strained relationship with her. They do not feel emotionally safe with her. They have been exposed to her considerable anger and frustration. It is often directed at them. Significant professional work will likely need to be done to repair those relationships to the point where overnight visits can start again, let alone to the point where a court could seriously contemplate placing the children with her.

o) The father has shown that he is more able to cooperate on issues regarding the children than the mother. He attempts to communicate with the mother. However, due to her deep distrust of him, she reacts with hostility. The mother is convinced that the father is only after money. The evidence does not support this. He initially did not seek support in his motion to change. He did not seek costs although he was successful on the temporary motion. It was evident at the hearing that his focus was on the parenting issues – the support issue was secondary for him.

p) The mother’s evidence revealed that her request to have the children come and live with her may have more to do with fulfilling her own needs than those of the children. She writes at paragraph 5 of her August 20, 2021 affidavit:

I am seeking primary parenting/sole custody to get the kids back to a healthy and fulfilling lifestyle as they are safer with me, mom. It is my duty as a mom to do so and this lack of duty when A. has been at dads for 2 years has affected me, more than words can say.

The mother writes at paragraph 13 of that affidavit:

I have suffered from being medically anemic since I was a kid, and it has been getting worse from this ordeal. My doctor says that with the reduction of stress, I can slowly get better.

q) It is in the children’s best interests that major decisions be made for them in a timely manner and not be paralyzed due to the mother’s anger at and distrust of the father.

Part Five – Parenting time

[54] In determining the mother’s parenting time, the court must consider the relevant best interests considerations contained in subsections 24 (2) to (7) of the Act.

[55] In particular, 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.

[56] The mother wants to see the children as much as possible. She did not make a specific parenting time proposal.

[57] The father made a comprehensive parenting time proposal that included alternate weekends and holidays. However, the entire schedule was subject to the wishes of the children.

[58] Given the reality that A. has chosen to only see the mother on Saturdays each week for a few hours at a time since last summer and S. has chosen to do the same for the past two months (and only if A. is present), it is not in the best interests of the children to order a detailed parenting schedule that is unlikely to be implemented. The children’s views and preferences are very important, given their age and maturity.

[59] The court finds that the parenting time submission made by the OCL is in the children’s best interests. The court will order that the mother have minimum parenting time with the children on Saturdays (or on any other day agreed upon by the parties and the children) each week for four hours. The children shall have further parenting time with the mother, including longer day parenting time, overnights and holidays, as they may agree to. S.’s parenting time with the mother shall take place with A. present, unless S. agrees otherwise.

[60] The evidence indicates that the father has facilitated additional parenting time between A. and the mother when A. has requested it. He has consistently said that he will do this if the children want to see the mother more. The order will provide that the father is to reasonably facilitate overnight and extended holiday parenting time between the mother and any child who wishes to exercise this.

[61] It is in the best interests of the children that they continue to have extended holiday times with the father and be able to travel with him. The order will provide for this. The order will also provide that the mother shall not remove the children from Ontario without the written consent of the father, such consent not to be unreasonably withheld, nor without the consent of the children.

[62] The mother is in pain due to the rupture of her relationship with the children. However, the solution she seeks – to have the children live with her, will not fix these relationships. She and the children need professional help to move forward. The parties are strongly encouraged to arrange family therapy for the mother and the children.

Part Six – Incidents of parenting

[63] The mother seeks an order that the children and the father be tested for drug use. She based this request on seeing straws in S.’s bag at a visit in November 2021 and A.’s presentation when she saw her two weeks ago. The mother said that she was a drug addict for 10 years and recognizes the signs. She expressed that she is very afraid for the children.

[64] The mother’s evidence in her amended response to motion to change was different than that given at trial. [4] In her amended response to motion to change she requested that a drug test be completed of the father, his wife and the children as “everyone has been acting strange for years”. She did not mention finding straws when she saw S. in November 2021.

[65] When questioned by the OCL, it became apparent that the mother never told the father about her concerns that the children were using drugs. [5]

[66] The court will not make the order requested by the mother. There is no independent evidence that the children are using drugs. The order being sought is too intrusive.

[67] The court will order that the mother have the rights to information about the children set out in subsection 20 (5) of the Act. This subsection reads as follows:

Parenting time

(5) The entitlement to parenting time with respect to a child includes the right to visit with and be visited by the child, and includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education.

[68] The mother shall exchange the children on visits unless she is exercising overnight parenting time with a child in Wasaga Beach. In that case, the mother shall pick up the child, or children, in Toronto at the start of their parenting time and the parties shall exchange the child, or children at the ONroute southbound stop on Highway 400, near Innisfil, Ontario, at the end of the parenting time with the mother. [6]

[69] The court will include and expand on clauses from the existing order regarding therapy and other services for the children to ensure they are able to receive the assistance that they require.

[70] The court will also make communication orders to protect the children from conflict.

Part Seven – Child support

7.1 Start date for child support

[71] The father seeks child support from the mother retroactive to September 2, 2021. This is when the court ordered that S. have her temporary primary residence with him.

[72] The mother objects to any child support order being made.

[73] The father raised the issue of child support with the mother in early November 2021 by text message. This is when the father provided the mother with effective notice of his interest in seeking support. It is the presumptive date when support should start. See: Colucci v. Colucci, 2021 SCC 24, par. 114. The mother acted with hostility to this request and refused to pay any support. [7]

[74] The court has the discretion to deviate from the presumptive start date if it is fair and just in the circumstances. Courts will consider the reason for the delay in seeking support, the conduct of the parties, the circumstances of the children and any hardship to the parties of either having to pay retroactive support or not receiving retroactive support. See: Colucci, supra, D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37; Michel v. Graydon, 2020 SCC 25.

[75] In this case, the father did not delay in seeking support. The mother has acted in a blameworthy manner by refusing to pay any support. She did not provide complete financial disclosure to the father. No evidence was led that the circumstances of the children have been disadvantaged by the mother’s failure to pay support. Any hardship to the mother from being required to pay retroactive support can be addressed through a payment order over a reasonable period of time.

[76] The father has made a modest request for retroactive support. It is fair. Support shall start on September 1, 2021.

7.2 The mother’s income

7.2.1 Positions and evidence of the parties

[77] The father asks that the mother pay child support based on her actual income, with the proviso that her annual income be imputed at no less than $31,200 for support purposes. [8] He bases this request on the mother’s lifestyle – he points out that the mother has been able to purchase and maintain a property. He believes that her businesses are doing much better than she claims.

[78] The mother deposed that she has nominal income and cannot afford to pay support. She has significant debt.

[79] The mother testified that she has a high school education and took one semester in university. She said that she has worked in many jobs, including reception, customer service, personal training and as a personal support worker. She said that she has two businesses. One is managing personal support workers. The other is a small music business.

[80] The mother deposed that her businesses have failed since she moved to Wasaga Beach. She testified that she is only earning $5,000 annually from them.

[81] The mother filed her last three Notices of Assessment showing her income as follows:

2020 - $15,760 2019 - $25,741 2018 - $27,396

[82] The mother did not provide documentary evidence of her 2021 income. Nor did she provide her complete income tax returns that would have shown the revenue and expenses for her businesses. A self-employed person has the onus of clearly demonstrating the basis of his or her net income. This includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes. See: Whelan v. O’Connor, [2006] O.J. No. 1660 (Ont. Fam. Ct.).

[83] An adverse inference is drawn against the mother for her failure to provide meaningful financial documentation.

[84] The mother valued the home she purchased in Wasaga Beach at $600,000. Her housing expenses are about $3,800 each month, according to her financial statement.

[85] The mother said that she rented out rooms in her home to four tenants, who each paid her $900 per month, for a total of $3,600 monthly. She said that two of these tenants left at the end of 2021 and that the other two tenants left last month, as she wanted the rooms to be available as part of her plan for the children.

[86] The mother testified that she also received government COVID-relief benefits of $300 each week for her businesses until this stopped two weeks ago.

[87] The mother said that she will likely sell her home if the children do not live with her.

[88] The mother expressed confidence that she will find work soon. She said, “I have always been able to find work”. She said that she has made many job applications. She expects to be able to earn income in the range of $20,000 to $25,000 each year by May 2022. She said that she just received a contract that should begin in a few weeks.

7.2.2 Legal considerations

[89] Section 19 of the guidelines permits the court to impute income to a party as it considers appropriate.

[90] The jurisprudence for imputation of income sets out the following:

a) 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. C.A.).

b) 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:

(i) Is the party intentionally under-employed or unemployed?

(ii) 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?

(iii) If not, what income is appropriately imputed?

c) 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.).

d) Where a party chooses to pursue self-employment, the court will examine whether this is a reasonable choice in the circumstances. See: Smith v. Smith, 2012 ONSC 1116.

e) 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, 2006 ONCA 26573.

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

g) A person’s lifestyle can provide the basis for imputing income. See: Aitken v. Aitken, [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas, [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373.

7.2.3 Analysis

[91] It is difficult to assess how much income the mother has been earning since September 1, 2021 due to her lack of financial disclosure.

[92] The mother was receiving government benefits of $300 each week until the end of February 2022. This projects to annual income of $15,200.

[93] The mother was also receiving rental income of $3,600 each month until the end of 2021. She received $1,800 each month for January and February 2022. However, she also had expenses associated with that revenue.

[94] The court needs to determine what percentage of the mother’s housing expenses [9] should be deducted from the rental income, taking into consideration that she was living in the home and would have had to pay these expenses, whether or not she had tenants.

[95] In Appu v. Appu, 2014 ONSC 19, the court addressed this issue at paragraph 20 as follows:

In my view, a determination must be made on the facts of each case as to whether a claimed expense was necessary in order to maintain the stream of rental income, or whether it was made to either acquire the property or to increase its value. An expenditure which, although necessary, is of a capital nature and may be said to increase the value of the property, such as a furnace or roof replacement, would not ordinarily be deductible in determining income for child-support purposes. The provision of support for a child should not be sacrificed for the purpose of acquiring property or building equity.

[96] The portion of mortgage payments that reduce principal should not be deducted from rental income as it increases the value of the property. See: Siddiqui v. Anwar, 2018 ONSC 219.

[97] The mother set out monthly housing expenses of about $3,800 each month in her financial statement. She did not separate out principal from interest for her mortgage payments, so the court will conservatively deduct $300 for principal payments from the housing expenses, leaving a monthly balance of $3,500.

[98] The court finds that it is reasonable for the mother to deduct 75% of these housing expenses while she had four tenants living in the home and 50% of these expenses when she only had two tenants living in the home. This leaves the 2021 monthly housing expenses at $2,625 ($3,500 x 75%) and the 2022 monthly expenses for January and February at $1,750 ($3,500 x. 50%).

[99] Accordingly, the net monthly rental income for the period from September to December 2021 would be $975 ($3,600 - $2,625), or $11,700 annually. The net monthly income for the first two months of 2022 would be nominal ($1,800 – $1,750), or $600 annually.

[100] In the absence of any supporting documentation, the adverse inference drawn against her, and based on her earning history, the court will add another $10,000 to the mother’s annual income from her businesses.

[101] The court calculates the mother’s income as follows:

For the period September to December 2021 (based on a projected annual income):

Business income - $10,000 Rental income - $11,700 Government income- $15,200 Total income: $36,900

For the period January and February 2022

Business income - $10,000 Rental income - $600 Government income - $15,200 Total income - $25,800

[102] This leaves the issue of what income should be imputed to the mother starting on March 1, 2022. She is no longer receiving government benefits. She no longer has tenants, although that is by her choice and there is nothing precluding her from obtaining new tenants. She believes that she will be able to earn income in the range of $20,00 to $25,000 annually by May 2022.

[103] The court will balance these factors by imputing the mother’s income at $25,800 until the end of June 2022, at which time it will be imputed at a minimum wage level - $31,200 annually.

[104] The guidelines table amount for two children at an annual income of $36,900 is $557 each month. At an income of $25,800, it is $388 each month. At an income of $31,200, it is $477 each month.

7.3 Additional support claims made by the father

[105] The father made two additional support claims. He asks the mother to contribute to A.’s orthodontic expenses. And, he asks that the mother refund $1,000 to him for support contained in the existing order.

[106] The court will not grant this relief. The father agreed to pay the full amount of A.’s orthodontic expenses and the additional $1,000 as part of the resolution that resulted in the existing order. That agreement was intertwined with the mother’s agreement not to seek additional support from him. Even though A. lived with the father and S. lived equally with both parents, the father earned more income than the mother. The court finds that the change in circumstances in S.’s living arrangements since September 1, 2021 should have no impact on that agreement.

7.4 Payment of arrears

[107] This order will create support arrears for the mother. The court recognizes that she is under financial stress.

[108] The order will defer the payment of the arrears for three months and then permit the mother to pay the arrears over time. However, if the mother is more than 30 days late in making any future ongoing support or arrears payment, then the full amount of arrears then owing shall immediately become due and payable. Further, if the mother sells her property, the full amount of arrears, then owing, shall be paid in full from the proceeds of sale.

[109] The father should register this order on title to protect his interest in the support arrears.

Part Eight – Conclusion

[110] The court makes final orders as follows:

a) The existing order is terminated and will be replaced by this order.

Parenting orders

b) The children shall primarily reside with the father.

c) The father shall have decision-making responsibility for the children.

d) The father shall promptly advise the mother of any major decision regarding the children.

e) Both parents shall continue to support enrollment of the children with respect to any counseling or therapeutic services they may require.

f) The father shall promptly provide the mother with the details of any services, programs, or therapeutic recommendations made by any of the children’s service providers and school.

g) The parties shall follow through with any recommendations made by the children’s schools and service providers.

h) The mother shall have the rights to information regarding the children set out in subsection 20 (5) of the Act.

i) The parties shall follow the process set out in section 39.1 of the Act if they intend to change their residence.

j) The parties shall follow the process set out in section 39.3 of the Act if they plan a relocation as defined in the Act.

k) The mother shall not discuss the court case or child support matters with the children.

l) The mother shall not denigrate or demean the father or his wife to the children, or in their presence.

m) The mother shall have parenting time with the children as follows:

1. A minimum of each Saturday, or on any other day agreed to by the parties and the children, for 4 hours.
2. Mother’s Day for a minimum of 4 hours.
3. If either child wishes to have longer day parenting time with the mother or have overnight parenting time and extended holiday parenting time with her, they will be permitted to do so and the father shall reasonably facilitate this.
4. S. will have her parenting time at the same time as A., unless S. agrees otherwise.
5. The parents are to respect the children’s views and preferences regarding parenting time with the mother.
6. The mother is not to pressure the children to have longer parenting time with her.

n) The father may have up to two exclusive weeks with the children each summer. He is to notify the mother each year in writing by May 15th which weeks he chooses.

o) The father may have one exclusive week with the children during the school winter break. He is to notify the mother by November 15th each year which week he chooses.

p) The father may travel with the children outside of Canada during his holiday time with them with the mother’s consent, such consent to not be unreasonably withheld.

q) The mother shall not remove the children from Ontario, without the father’s written consent, such consent not to be unreasonably withheld, and the consent of the children.

r) The mother’s parenting time will not take place during the designated holiday times that the children spend with the father.

s) The parties shall be flexible in allowing the children to attend special events with family and friends, or that take place at their school, or as part of any program.

t) The mother shall exchange the children on visits unless she is exercising overnight parenting time with a child in Wasaga Beach. In that case, the mother shall pick up the child, or children, in Toronto at the start of their parenting time and the parties shall exchange the child, or children at the ONroute southbound stop on Highway 400, near Innisfil, Ontario, at the end of the parenting time with the mother.

Child support

u) Based on an imputed annual income to her of $36,900, the mother shall pay the father child support of $557 each month, starting on September 1, 2021. This is the guidelines table amount for two children.

v) Based on an imputed annual income to her of $25,800, the mother shall pay the father child support of $388 each month, starting on January 1, 2022. This is the guidelines table amount for two children.

w) Based on an imputed annual income to her of $31,200, the mother shall pay the father child support of $477 each month, starting on July 1, 2022. This is the guidelines table amount for two children.

x) The mother may pay the arrears created by this order at the rate of $150 each month, starting on July 1, 2022. However, if the mother is more than 30 days late in making any future ongoing support or arrears payment, then the full amount of arrears then owing shall immediately become due and payable. Further, if the mother sells her property in Wasaga Beach, the full amount of arrears, then owing, shall be paid in full from the proceeds of sale.

y) Nothing in this order precludes the Family Responsibility Office from collecting arrears from any government source (such as income tax or HST/GST refunds) or any lottery or prize winnings.

z) A support deduction order shall issue.

Other claims

aa) All other claims made by the parties are dismissed.

[111] The court finds that the father was the successful party on these motions to change and that he is entitled to his costs. If he seeks his costs against the mother, he shall serve and file written submissions by April 4, 2022. The mother will have until April 19, 2022, to serve and file any written response. The submissions should not exceed 3 pages, not including any bill of costs (including the bill of any lawyer retained to assist them) or offer to settle. The costs submissions should be emailed or personally delivered to the trial coordinator’s office.

[112] The court thanks Mr. Hutcheson for his highly professional work on behalf of the children.

Released: March 21, 2022

Justice S.B. Sherr

[1] The mother repeatedly tells S. to “shut the fuck up and not to touch her fucking music”.

[2] This was apparent from the recording. The mother was focused on expressing her anger. She was not listening to S.

[3] The OCL wrote in his August 16, 2021 email to the parties: S. says that her mom told her a year ago that she was going to move to Wasaga but she was told that she had to keep that a secret from everyone. She says that dad and A. didn’t find out about them moving until the day before they moved. She says that she never wants either of her parents to tell her anything ever again that she cannot tell to the other parent. The mother did not deny telling S. this. In fact, she wrote to the father that she told S. not to tell him because she didn’t trust him or his wife.

[4] The amended response to motion to change was dated February 14, 2022.

[5] The mother deposed that “I think I left him a voicemail and he didn’t call back”. She did not text or email him with her concerns.

[6] This is the same transportation term that was ordered on September 2, 2021.

[7] See the text exchange in paragraph 39 above.

[8] This is now the annual income for a person earning minimum wage and working 40 hours each week.

[9] The mother’s housing expenses included mortgage, utility, property tax and property insurance payments.