DATE: March 1, 2022 COURT FILE NO. D40577/20

ONTARIO COURT OF JUSTICE

B E T W E E N:

O.C.W. TRICIA SIMON, for the APPLICANT APPLICANT

- and -

T.K.M. GLENDA PERRY, for the RESPONDENT RESPONDENT

HEARD: FEBRUARY 3 and 25, 2022

JUSTICE S.B. SHERR

REASONS FOR DECISION

Part One – Introduction

[1] This trial was about the parenting and child support arrangements for the parties’ two children (the children), B.W. (age 6) and B.M. (almost age 2).

[2] Both parties served and filed draft orders setting out the relief that they were seeking at trial. Both parties included numerous claims and terms that were not contained in their pleadings. However, the parties were put on notice of all the claims that the other sought and had a fair opportunity to provide evidence and make submissions addressing these claims. The court advised the parties that it would consider all the claims made in their draft orders.

[3] The applicant (the father) seeks orders for joint decision-making responsibility for the children and a week-on, week-off shared parenting schedule. He proposed a specified holiday schedule in his draft order and included claims for incidental parenting orders. [1] These included orders that B.W. attend at a school in the father’s neighbourhood and that the children’s residence remain in the City of Toronto.

[4] The father proposes to pay the mother child support of $200 each month, starting on December 1, 2021, based on an imputed annual income of $15,900. This is the Child Support Guidelines (the guidelines) table amount for two children.

[5] The applicant (the mother) seeks orders for sole decision-making responsibility for the children. She proposes a parenting time plan for B.W., where the father would have parenting time on alternate weekends, on one evening each week and on holidays. The mother would like the father’s parenting time to B.M. to be in her discretion. When the court asked her preference for a specified schedule for B.M., she proposed that the father have parenting time on one weekend a month and on holidays. The mother also made multiple claims for incidents of parenting.

[6] The mother seeks child support from the father, including a claim for special and extraordinary expenses pursuant to section 7 of the guidelines (section 7 expenses), retroactive to January 1, 2020. She asks the court to impute the father’s annual income at $80,000 for support purposes.

[7] 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 father’s nephew (C.) also testified.

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

a) What parenting orders regarding primary residence, decision-making responsibility, parenting time, communication, travel and other incidents of parenting are in the children’s best interests?

b) When should the support order start?

c) What is the father’s annual income for the purpose of the child support calculation?

d) What should the father pay to the mother, if anything, towards section 7 expenses?

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

[9] The father is 43 years old. He is the father of 10 children, including the two children before the court. Two of his children are adults. His other children live with their mothers.

[10] The father has only been involved in a family court with one other mother of his children. An order from the Ontario Court of Justice in Brampton requires him to pay $130 each month for one child.

[11] The father lives with his mother (the paternal grandmother) at her home in Toronto. He is in receipt of Ontario Works (OW).

[12] The mother is 37 years old. She came to Canada from Jamaica on a visitor’s visa in 2008. The mother has no immigration status in Canada. She lives with P.S., who is sponsoring her to live in Canada.

[13] The mother has one other adult child who lives in the United States.

[14] The mother is not employed.

[15] The parties began residing together in 2014 in the basement of a home owned by the paternal grandmother.

[16] The father said that the parties separated in May 2018 for two weeks. This was after he was charged with assaulting the mother. He said that he and the mother were then in an “off and on” relationship, but that they were living together when they finally separated on August 26, 2020.

[17] The mother claims that the parties permanently separated in December 2019, when the father moved upstairs to live with the paternal grandmother and she remained downstairs in the home with the children. She said that she left the paternal grandmother’s home with the children on August 26, 2020, following an argument with the father. She went to live with her aunt in Ajax, Ontario. On November 1, 2020, the mother and P.S. moved in together in Toronto with the children. They continue to live together.

[18] The father issued his application on September 3, 2020 and brought a motion for temporary relief.

[19] On September 16, 2020, Justice Carolyn Jones made temporary orders, on consent, that the father would have parenting time with B.W. every weekend from Friday after school until Monday morning when he was to return him to school. She made an order for holiday parenting time and ordered that B.W. not be removed from Ontario.

[20] The father did not seek any orders regarding B.M. at that time, either in his application or in his notice of motion.

[21] On August 12, 2021, Justice Jones placed the case on the trial sittings for the week of December 6, 2020.

[22] The father sought an adjournment of the trial. This request was denied by Justice Jones on November 29, 2021.

[23] On the first day scheduled for trial, the father’s counsel at the time moved to be removed as the father’s lawyer. Justice Jones granted the order on December 8, 2021.

[24] The father then asked to adjourn the trial to obtain new counsel. The father proposed to start paying child support of $200 each month as a term of the adjournment.

[25] Justice Jones adjourned the trial on terms, including that:

a) The father was to pay temporary child support to the mother of $200 each month, starting on December 15, 2021, this being the guidelines table amount for two children, based on an annual imputed income to him of $15,900.

b) The father was to transfer to the mother any Canada Child Benefits (CCB) he receives for either child.

c) The father was not to contact or communicate with the mother, except about the children, and such communication was to only be in writing, by text or email. He was also not to discuss the litigation with the mother.

Part Three – Credibility and findings regarding material facts in dispute

3.1 Material facts in dispute

[26] There were several material facts in dispute in this case.

[27] The father claimed that he was the primary caregiver for B.W. during his relationship with the mother. He said that the mother would leave the home for a week at a time, return for a couple of days and then leave again. B.W. would stay with him. He said that the mother moved to Scarborough with B.M. in April 2020 and left B.W. with him. He said that the mother and B.M. would return to his home for a day or two and then return to Scarborough. However, he said that they were all residing together again until August 26, 2020, when the mother took both children with her to Ajax.

[28] The mother claimed that she was the primary caregiver for both children during their relationship. She denied leaving the home for a week at a time and denied leaving to live in Scarborough in April 2020. She testified that, except for a short separation in 2018, she always lived in the paternal grandmother’s basement with the children, until they left on August 26, 2020.

[29] The mother deposed that the father has always preferred B.W. to B.M. She said that he initially questioned whether he was B.M.’s father and she had DNA testing done to confirm this. She said that until recently, the father rarely asked to see B.M. or asked to speak to her on virtual/telephone calls. The father said that the mother had lied to him about the pregnancy and that he was concerned that he was not B.M.’s father. He claims that the mother has excluded him from decision-making responsibility for B.M.

[30] The mother claimed that her relationship with the father was marked by significant family violence. She deposed that the violence was constant, often in front of the children, and was physical, emotional, psychological and financial in nature. The mother alleged that the father was coercive and manipulative towards her.

[31] The mother claimed that the most significant abuse perpetuated by the father against her was his constantly threatening to report her lack of immigration status to the authorities. He would claim that he had powerful friends in law enforcement, and that he would report her if she:

a) informed anyone of his abuse towards her;

b) left the home with the children;

c) didn’t grant him parenting time with the children when he sought it; or

d) sought support from him.

[32] The father denied any abuse of the mother and claimed that she was lying to obtain a litigation advantage.

[33] The mother claimed that the father has not complied with court orders. She said that he routinely overholds the children, is late returning B.W. to school on Mondays and that he frequently contacts her directly in violation of Justice Jones’ order. The father denied overholding the children at the end of his parenting time. He did not deny directly contacting the mother after Justice Jones made her order.

[34] The mother claimed that the father has been earning significant unreported cash income, first operating a barbershop and then, starting in June of 2020, when he opened a restaurant. She said that he has always operated in cash and has put his assets in the names of family members to avoid his child support obligations.

[35] The father said that he is on OW and is unable to work for medical reasons. He denied owning the barbershop or the restaurant. He said that both businesses were both owned by C. He said that prior to a motor vehicle accident in 2017 he rented a chair at C.’s barbershop. He said that he also helped out on occasion, without pay, when C. opened his restaurant in June, 2020. He said that C. closed the restaurant in November 2021.

[36] C. testified to corroborate the father’s evidence about the barbershop and the restaurant.

[37] The mother testified that the father discussed with her his desire to buy a van to operate a mobile barbershop. She said that he now has a van in his driveway and is doing work on the interior of the van. The father denied this and claimed that he was holding the van for a friend because his friend had nowhere to park it.

3.2 The father and C.

[38] The father was not a credible witness.

[39] The father was evasive when asked difficult questions, particularly when asked about supporting his children and his involvement in the barbershop and restaurant businesses. His evidence was often inconsistent or incredulous. His testimony about the history of his living arrangements with the mother kept shifting.

[40] The father is not an honest person and will not hesitate to lie or cheat to advance his own interests. For instance:

a) He started receiving OW in 2019 although he was working. [2]

b) He collected Canada Emergency Recovery Benefits (CERB) for 5 months in 2020, even though he claimed that he hadn’t worked since 2017.

c) He collected the CCB for B.W., even though B.W. was living with the mother after August 26, 2020. He blamed his accountant being away for his not transferring this money to the mother.

d) He was ordered to pay the CCB to the mother as a term of the adjournment by Justice Jones. He continues to short the mother on the payments. He is now transferring $600 each month to her, even though the monthly benefits are $672.

e) He claimed B.W. as an eligible dependant in his income tax return, even though that was false.

f) He has collected additional OW benefits for B.W., even though B.W. has not been in his care. When asked why he had failed to advise OW about this, the father answered, “I was about to”. He improperly collected additional benefits from September 2020.

g) To obtain an adjournment of the trial, the father promised to pay child support of $200 per month. He hasn’t paid the mother any support since then. He claimed that he does not know how to etransfer funds to the mother. He blamed the Family Responsibility Office for not getting in contact with him. He also blamed his former lawyer, saying that he told him to promise this to get the adjournment. This was part of a pattern that emerged where the father blamed others for his actions.

[41] It became painfully obvious during the testimony of C. and the father that the father was the real owner and operator of both the barbershop and the restaurant and that the father had put legal ownership of these businesses in C.’s name to avoid his support obligations.

[42] The mother’s evidence about the father owning the restaurant was credible. She described how they discussed opening the restaurant. She purchased a piece of equipment for the business. The father hired her to work in the restaurant for over two months until their final argument on August 26, 2020. The father worked with her many days at the restaurant.

[43] The mother produced a text where the father threatened in an argument to sell the restaurant. When presented with the text, the father gave the absurd response that C. had taken his phone and sent the mother that message.

[44] The mother also produced texts that she had sent to the father complaining about him always taking B.W. to the restaurant during his parenting time.

[45] Lastly, the mother hired a private investigator who took photos and video of the father working several days in a row at the restaurant in October 2021. There was only one other person working with him on those days and it wasn’t C.

[46] Despite Justice Jones ordering the father to serve C. with a summons to bring all the records of the restaurant business to court, C. had no records with him when he testified. He said that the father did not serve him with a summons or ask him to bring those papers to court.

[47] C. is 29 years old. He testified that after leaving high school he worked in a warehouse. Until recently, he lived with his parents in Alliston, Ontario and did not have a car. He has never been a barber or worked in the restaurant industry.

[48] C. was an extremely poor witness. He was defensive and constantly claimed “I can’t remember”, when asked questions that he easily should have known the answers to, if, in fact, he had been the owner of the barbershop and restaurant.

[49] C. was asked to produce his texts sent on the day he gave testimony. [3] He had sent his C.V. that day to a friend. The C.V. made no mention of his ever owning a barbershop or a restaurant. C. said that the C.V. was old. The court did not believe him.

[50] Despite claiming that he was the real owner of the restaurant and worked there 5 to 6 days each week, C. demonstrated a remarkable lack of knowledge about the business. He didn’t know:

a) The name of the business on the lease.

b) When his business was incorporated.

c) The name of his landlord.

d) The name of his accountant or where his accountant was located.

e) How much he paid monthly for rent.

f) Why regular rent payments were not reflected in his bank statements.

g) Where important equipment for the restaurant was purchased or rented from and how much he paid for it – such as his steam table and cash register.

h) Where he obtained supplies.

i) Where he purchased his produce.

j) How much he paid for various expenses, such as phone or hydro.

[51] C. could not explain why no HST was being paid to the government.

[52] C. claimed that the restaurant was failing and that he had to close it. However, his October 29, 2021 business bank statement showed over $24,000 in the account.

[53] It was apparent that the father owned and operated the restaurant. It was also apparent that when confronted with the mother’s evidence and the impending trial, the father closed the restaurant in a clumsy attempt to avoid his child support obligations.

[54] The court finds that the father previously owned and operated the barbershop. He was a barber, albeit unlicensed. C. was just out of high school living with his parents in Alliston, with no car. C. couldn’t remember when the barbershop was opened. He never filed any income taxes for the business. When asked why, he answered, “I didn’t feel I had to”.

[55] The father was also not credible regarding several other material facts in dispute, including:

a) He denied threatening to report the mother to immigration. The mother produced audiotapes contradicting this, where the father was threatening to her.

b) He claimed to have paid B.W.’s Montessori expenses. Despite the mother alleging that he had paid none of these expenses, he produced no documentary evidence of payments made. The mother provided documentary evidence that she was the one who had made these payments.

c) The father’s evidence regarding his relationship with B.M. was not credible. He made no claim regarding B.M. in his application. He was given an opportunity by Justice Jones to amend his application to include claims for B.M. and never did this. [4] His testimony was primarily focused on B.W.

d) The father claimed that he supports all his children. The evidence demonstrated otherwise. The father is only required to pay court-ordered support for one other child. It is a modest order - $130 each month. However, the father did not even pay that amount and his driver’s licence was suspended by the Family Responsibility Office. The father testified that he borrowed $2,500 from his family to pay the arrears and get his licence back. It is telling that he borrowed this money to keep his licence but has paid only a total of $200 for supporting the children since this case began.

The father provided no documentary evidence that he has paid child support for his other children. The more the mother’s counsel explored the father’s history of paying support for his other children, the more obvious it became that the father had paid very little support for them.

3.3. The mother

[56] The mother was a credible witness. She answered questions directly. Her evidence was generally consistent. Despite the father treating her poorly, she has always encouraged and facilitated his relationship with the children, showing considerable good faith.

[57] The mother was very specific about the incidents of family violence by the father against her. [5] He was charged with assaulting her in 2018. She produced a photograph of her injuries. She provided texts discussing his assaults contemporaneous with the incidents.

[58] The mother discussed, in a credible manner, the father’s power and control over her. She was convinced that he had the ability to have her deported and to take away her children. [6] He frequently made these threats to her. Accordingly, she was scared to engage with the police, the court or any service providers. She was afraid what would happen to her if she left the father or if she did not give him the children whenever he wanted them. She was afraid to ask him for support. She had seen how he had financially treated the mothers of his other children.

[59] The mother was often able to produce documentation to support her version of events. She produced receipts of payments she made to the Montessori school and a letter from the school principal confirming this. She produced school records showing that the father was returning B.W. late, or not at all, to school on Mondays.

3.4 Findings of material facts in dispute

[60] Where the mother’s evidence conflicted with the father’s evidence or with C.’s evidence, the court preferred the mother’s evidence.

[61] The court accepted none of C.’s evidence, nor the father’s evidence regarding the material facts in dispute.

[62] The court makes the following material findings of fact:

a) The mother has been the primary caregiver for the children.

b) The mother lived with the children at the paternal grandmother’s home until August 26, 2020. The court accepts the mother’s history of where the children have lived, as set out in paragraphs 17 and 28 above.

c) The father perpetuated family violence against the mother. The violence was physical, emotional, psychological and financial. The father exercised coercive control over the mother. This violence would sometimes take place in the presence of the children.

d) The father has overheld the children after his scheduled parenting time.

e) The father often returns B.W. late to school during his parenting time.

f) The father has been ambivalent about parenting B.M.

g) The father has ignored court orders by failing to pay court-ordered child support, failing to transfer the entire CCB to the mother and by frequently contacting the mother directly when ordered not to. He also did not comply with Justice Jones’ order to serve a summons on C. to bring all financial records for the restaurant to the trial.

h) The father has avoided his financial responsibilities to the children.

i) The father operated a barbershop and a restaurant with formal ownership put in C.’s name. The father earned cash income from both businesses.

j) The father is preparing to start a mobile barbershop.

k) The father is attempting to conceal his true financial situation from the mother and the court.

l) The father closed his restaurant business to avoid his child support obligations.

m) The mother paid all the Montessori expenses for B.W.

n) The father has collected government benefits for B.W. by misrepresenting the child’s status to government authorities.

Part Four – Decision-making responsibility and primary residence

4.1 Legal considerations

[63] 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 section 24 of the Children’s Law Reform Act (the Act). The court has considered these factors, where relevant.

[64] 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.

[65] 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.

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

Factors relating to family violence

(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor.

[67] Subsections 18 (1) and (2) of the Act describes family violence as follows:

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

“Family violence”

(2) For the purposes of the definition of “family violence” in subsection (1), the conduct need not constitute a criminal offence, and includes,

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

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

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

[68] 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.

[69] 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.

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

1. There must be evidence of historical communication between the parents and appropriate communication between them.

2. It can’t be ordered in the hope that it will improve their communication.

3. Just because both parents are fit does not mean that joint custody should be ordered.

4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.

5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

6. The younger the child, the more important communication is.

[71] 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.

[72] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. See: Griffiths v. Griffiths, 2005 ONCJ 235, 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, 2009 ONSC 6423.

[73] 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. 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.

[74] In S.S. v. S.K., 2013 ONCJ 432, 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.

[75] Ultimately, the court must determine if a joint decision-making responsibility order, or an order allocating any decision-making responsibility between the parties, is in the child’s best interests. The court also has the option, if it is in the child’s best interests, to leave some or all aspects of decision-making responsibility silent. See: M. v. F., 2015 ONCA 277.

4.2 Analysis

[76] The father feels that he can communicate well with the mother and seeks an equal parenting time arrangement with her and joint decision-making responsibility for the children.

[77] However, the evidence indicates that the parties’ communication is very poor. The father is coercive, controlling and dishonest. He is used to getting his own way and does not hesitate to threaten the mother to accomplish this.

[78] The mother has been very flexible in giving the father additional parenting time when he requests it. The same cannot be said for the father. He has refused to give the mother any weekend parenting time. He refused to let B.W. attend B.M.’s first birthday party that took place on a weekend. It wasn’t until November, 2021 that B.W. spent a weekend with the mother and it was only because he had COVID-19.

[79] It also became apparent in cross-examination that the father failed to advise the mother that he had COVID-19 when B.W. was with him.

[80] The father has ignored court orders that he doesn’t like. He chose not to pay any child support or to transfer the full CCB to the mother. Justice Jones was required to make a decision that the father only communicate with the mother in writing. He ignored that order – even with a trial imminent. The court has no confidence that he will consistently comply with court orders or work cooperatively with the mother, unless it suits his purposes.

[81] The court also has little confidence in the father’s judgment. While he loves his children, he puts his own interests first. He has failed in an important component of parenting – financially supporting one’s children.

[82] The father’s claim for equal parenting time and joint decision-making responsibility for B.M. is totally unrealistic considering his ambivalent interest in the child.

[83] The mother has made responsible decisions for the children. She has provided them with stability and security. She described a child-focused daily routine. She has a loving household. The children have a close relationship with P.S., who earns a good income and has provided the mother and the children with some economic security.

[84] The mother has been the parent who has primarily attended to the children’s physical and emotional needs. She is the parent who primarily takes the children to the doctor and the dentist. She ensures that B.W. is taken to school on time.

[85] The court finds that it is in the children’s best interests that they have their primary residence with the mother. It is also in their best interests that the mother have sole decision-making responsibility for them. The one exception will be regarding decision-making responsibility for culture, language, religious and spiritual training – in these areas, each party may make these decisions when the children are in their care. [7]

[86] The father asked for an order that B.W. attend at a school near his home. The court will not make that order. B.W. will primarily live with the mother and will live with her almost exclusively during school weeks. The mother has made sound educational decisions for B.W. She is the parent who gets him to school on time. It is in B.W.’s best interests that the mother be the parent to choose which school he attends.

[87] The parties proposed similar consultation and information-sharing clauses in their draft orders. The court will incorporate them, with some minor amendments, into its order.

Part Five – Parenting time

5.1 – Legal considerations

[88] In determining parenting time, the court must consider the relevant best interests considerations contained in subsections 24 (2) to (7) of the Act, as described in Part 4.1 above.

[89] 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.

[90] 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.

[91] 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.

[92] 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.

[93] 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.

[94] 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.

5.2 Analysis

[95] The father seeks equal parenting time with the children. For the reasons discussed in Part 4.2 above, this is not in the children’s best interests.

5.2.1 B.W.

[96] The mother seeks an adjustment to the current parenting time schedule for B.W. She would like to spend alternate weekends with him. This would enable her to take B.W. to weekend family events and to church. The mother also asks that the father’s weekend parenting time with B.W. end on Sunday evenings due to the father’s poor record in returning B.W. to school on Monday mornings. The mother proposed adding a weekly midweek visit to the father’s parenting time.

[97] The parties both spoke about B.W. in loving terms. They agree that he is a lovely boy who is generally doing well.

[98] The parties agree that B.W. and the father love each other and have an excellent relationship. They also agree that B.W. should spend significant parenting time with the father.

[99] The mother expressed no major concerns with the father’s parenting ability. The father can meet B.W.’s basic needs and keep him safe.

[100] It is also agreed that B.W. has a very good relationship with the father’s extended family that should be fostered.

[101] The court considered that B.W. is used to spending each weekend with the father. He enjoys this and is comfortable in the father’s home. It is not in his best interests to make a significant adjustment to the parenting schedule.

[102] However, the court finds that it is also in B.W.’s best interests to spend one out of every four weekends with the mother. The mother wants to be able to take B.W. to church on Sundays. The ability of a parent to share their culture, religion and spirituality with a child is a best interests factor under clause (f) of subsection 24 (3) of the Act. Further, many activities for children are only open on weekends. B.W. should be able to participate in these activities, at times, with the mother. See: A.R. v. M.C., 2021 ONCJ 525.

[103] The court also finds that it is in B.W.’s best interests to end the father’s weekend parenting time on Sunday evenings. He is not reliably getting B.W. to school on Mondays. It is important for B.W.’s education and development to be regularly on time for school. The court will give the father additional weekday parenting time as suggested by the mother.

[104] The court finds that the holiday schedule proposed by the mother is generous, practical and in B.W.’s best interests. Except for the summer holidays, the father proposed a similar schedule.

5.2.2 B.M.

[105] B.M.’s best interests require a different parenting time order.

[106] The father has chosen not to have a close relationship with B.M., despite the mother’s encouragement. His interest in B.M. has only been recent, and as pointed out by the mother, the father’s requests for weekend parenting time with B.M. came just before the scheduled starts of the trial.

[107] The father did not make a parenting time claim for B.M. in his application. He did not amend his application to include such a claim, even after being given permission to do so by Justice Jones. He never brought a motion seeking temporary parenting time to her. He first put the mother on notice that he was seeking parenting time (and equal parenting time at that) in his trial affidavit.

[108] The mother essentially asked the court to leave the father’s parenting time with B.M. in her discretion. However, this would do B.M. and the mother no favours. It is in B.M.’s best interests to order specific parenting time, so that the mother has no enforcement difficulties if the father overholds B.M., as he recently did on the January 21, 2022 weekend. It is also in B.M.’s best interests to foster her relationship with the father and the paternal family.

[109] The mother’s counsel suggested that the father have parenting time with B.M. one weekend each month. The court finds that it is in B.M.’s best interests to have this parenting time with the father, together with a weekday visit, at the same time as B.W. in alternate weeks. Hopefully, the father commits himself to this relationship and this parenting time can increase in the future. However, as of today, B.M. does not have the close connection with the father and his family that B.W. has. She is very young and not used to being away from the mother.

[110] B.M. has had some extended visits with the father that have gone successfully. The court also finds that the father has the parenting skills to properly care for B.M. during the parenting time that will be ordered.

[111] It is in B.M.’s best interests that B.W. be present during the father’s parenting time with her. The siblings were described to the court as being very close and this should ensure that B.M. feels safe and secure during her parenting time with the father.

[112] For the sake of clarity, the father’s parenting time with B.M. shall take place on the first weekend of the four weekend cycle, starting on March 4, 2022, and the weekday visits shall begin on March 9, 2022.

[113] The court will also make orders regarding holiday parenting time between the father and B.M. Given the child’s age and relationship with her father, the court will order that the father may have one week of extended parenting time with B.M. in the summer, as opposed to the three weeks that will be ordered for B.W. The mother will have the discretion to increase this time in the future.

Part Six – Incidents of parenting

[114] The court will order the clauses regarding the children’s government documentation proposed by the mother in her draft order. This includes a provision that the mother may obtain this documentation without the father’s consent. This is in the children’s best interests as the court is concerned that the father would use any required consent to exercise improper control over the mother.

[115] The court will also order the father to immediately deliver to the mother any government identity documents for the children he has in his possession.

[116] The court will order most of the travel clauses proposed by the mother in her draft order. This will permit her to travel with the children outside of Canada without the father’s consent, once she receives immigration status in Canada or an authorization from immigration authorities that would permit her to re-enter Canada with the children. It is in the best interests of the children to experience travel with the mother. Again, the court is concerned that the father would use any required consent to exercise improper control over the mother and to thwart the children’s ability to travel. The travel order will require the mother to give the father notice of any vacation and a full itinerary.

[117] The mother asks for an order that the father not remove the children Canada without her prior written consent, or prior court order. The court finds that it is in the children’s best interests to include this term. The mother has acted reasonably and exercises good judgment. There is no indication that she would unreasonably withhold her consent.

[118] The father seeks a term that the children’s residence remain in Toronto. The mother was agreeable to this for B.W., but not for B.M. The court finds that this term is too rigid in the circumstances of this case, and not in either child’s best interests. For instance, the mother should be able to move within the Greater Toronto Area if it only requires a slight modification, if any, of the father’s parenting time.

[119] Section 39.1 of the Children’s Law Reform Act states that a person who has decision-making responsibility or parenting time with respect to a child and who intends to make a change in residence, or in the child’s residence, shall notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention. The mother proposes that the parties provide each other with 30 days notice of any such intention. This is reasonable and the court will order this.

[120] Subsection 39.3 (1) of the Act states that a person who has decision-making responsibility or parenting time with respect to a child and who intends a relocation shall, at least 60 days before the expected date of the proposed relocation, notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention. The mother proposed changing the notice period to 30 days. The court will not order that. The relocation provision in the Act ensures that the father will have a reasonable opportunity to have the court assess if a relocation is in the children’s best interests before it takes place.

[121] The court will order the exchange and transportation terms sought by the mother. They are not contentious and are in the children’s best interests.

[122] The parties both proposed communication terms that will be incorporated into the order.

Part Seven – Child support

7.1 Positions of the parties

[123] The father deposed that:

a) He is on OW and is unable to work due to medical issues. However, he is still prepared to have his annual income imputed at $15,900 for support purposes and pay child support of $200 each month, starting on December 15, 2020.

b) He did not graduate from high school.

c) In 2014, he was working in a barbershop owned by a friend (this turned out to be C.). He said that he rented a chair in the barbershop. He said that he worked 5 to 6 days each week and made about $20,000 annually.

d) He was involved in a motor vehicle accident in January 2017 and stopped working as a barber. He claimed that he has not worked for pay since then.

e) He has a left knee problem, constant headaches and a back problem arising from the accident. He said that he can’t sit or stand for too long and has some issues with depression.

f) His notices of assessment from 2017 to 2019 show nominal income (close to $1,000 in each of 2017 and 2018). In 2020, his notice of assessment shows income of $20,989. This appears to be from a combination of OW and the CERB he claimed. [8]

g) He went on OW in 2019 and currently receives $1,232 each month.

h) He did not work as a barber after January 2017, or at the restaurant starting in June 2020.

i) He recently enrolled in an adult learning centre to earn the credits to obtain his high school diploma. At trial, he said that he has not started school because he had an accident at his son’s birthday party in November 2021, fractured his leg and then a couple of days later developed a blood clot in his right leg.

[124] The mother seeks to impute the father’s income at $80,000 annually and for him to pay the guidelines amount for support, starting on January 1, 2020.

[125] The mother deposed that:

a) The father operated a barbershop in the northwest part of Toronto from 2012 until February 2020. She said that he worked 6 days each week. He used to charge $25 for a haircut. He would earn $2,000 weekly before expenses. He also charged two barbers $250 each week to rent a chair from him and provided the court with their names. The father told her that the rent for the barbershop was $2,600 per month.

b) The father opened a Caribbean restaurant in the northwest part of Toronto in June 2020, and he spent 6 days each week there. He was collecting between $600 and $700 each day in cash and told her that he was paying $2,000 each month for rent.

c) The funds for the restaurant came from her and the father. The father told her that he wanted the ownership to be in C.’s name because he had no credit and he wanted to avoid paying child support for his other children.

d) In March 2020, she used her credit card, at the father’s request, to pay for a steam/warming table for the restaurant. The father promised to pay her back, but never did.

e) The father hired two employees for the restaurant. She also worked at the restaurant from June 2020 until August 26, 2020. The father would pay her $200 each week in cash, and sometimes $300.

f) The father worked behind the counter at the restaurant, cooking and preparing food. He worked at the cash register and did maintenance and cleaning too. He collected the money and opened and closed the restaurant. C. did not work there.

g) The father earned additional income cutting hair when he wasn’t at the restaurant.

h) The father did all the banking and deposits for the barbershop and the restaurant. She often accompanied him.

i) To the best of her knowledge, the father never reported any income from the barbershop or the restaurant to CRA.

j) The father often discussed with her opening a mobile barbershop in a van. She was certain that he is modifying the van, presently in his driveway, for that purpose.

k) The father did not pay child support to her in 2020. She feared going to court because of the father’s immigration threats to her. She only claimed support once the father brought this court application. [9]

7.2 The start date for support

7.2.1 Legal considerations

[126] 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;

[127] Any support claimed after an application is issued is prospective support, not retroactive support. See: Mackinnon v. Mackinnon, 2005 ONCA 331.

[128] In Colucci v. Colucci, 2021 SCC 24, the court set out the framework that should be applied for applications to retroactively 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. 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.

[129] This framework in Colucci addresses a request to retroactively increase the support contained in an order or an agreement. Courts have found that this framework should also be applied, with necessary modifications, for an original request for retroactive support. See: M. A. v. M.E., 2021 ONCJ 555; A.E. v. A.E., 2021 ONSC 8189.

[130] 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 [10] will guide the exercise of that discretion, as described in Michel v. Graydon, 2020 SCC 25. 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.

7.2.2 Analysis

[131] The presumptive start date of support in this case is September 22, 2020. This is the date of formal notice – when the mother made her claim for support. Since the mother did not request support from the father before this date, it is also the date of effective notice.

[132] The court will only deviate slightly from the presumptive start of support. Although the parties physically separated within the paternal grandmother’s home at the end of December 2019, the evidence shows that they did not end their economic relationship until August 26, 2020.

[133] The mother continued to live with the children in the paternal grandmother’s home until August 26, 2020. She assisted the father in opening his restaurant. She purchased the steam table. The parties worked alongside each other at the restaurant from June to August 26, 2020. The father paid the mother cash of $200 and sometimes $300 each week.

[134] The mother did not delay in bringing her support application after leaving the paternal grandmother’s home. The father had paid no child support and the very small retroactive period will not cause him hardship.

[135] The court finds September 1, 2020 to be the fairest start date for support in these unusual circumstances.

[136] There is no basis to deviate from the presumption that the father should pay prospective support from the date of formal notice. He has engaged in blameworthy conduct by failing to pay child support in accordance with his actual income.

7.3 Determination of the father’s income for support purposes

[137] The court has already rejected the father’s assertions that he has not worked since 2017. It found that he owned and operated a barbershop until February 2020 and that he owned and operated a restaurant from June 2020 until he closed it in November 2021. It also found that he put the ownership for these businesses in C.’s name to avoid his support obligations.

[138] The court found that the father closed the restaurant prior to trial to avoid his child support obligation – not because it was unprofitable. It also found that he is preparing to start a mobile barbershop business.

[139] The court finds that the father has been and continues to be medically able to work full-time.

[140] Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that their reasonable health needs justify their decision not to work. See: Cook v. Burton, 2005 ONSC 1063, [2005] O.J. No. 190 (SCJ) and Stoangi v. Petersen, 2006 ONSC 24124, [2006] O.J. No. 2902 (SCJ). The father did not provide adequate medical evidence to support his contention that he is medically unable to work. He filed what is called a “Psychological Paper Review” dated December 9, 2019. [11] It was an assessment of a treatment plan requested by the insurer. It did not provide an assessment of his ability to work.

[141] The report assessed the father’s psychological state based on his self-reporting. Since this court finds that the father is not honest, the report has little reliability or value.

[142] The father filed no further medical evidence at trial.

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

[144] 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 ONCA 41868, [2002] O.J. No. 3731(Ont. C.A.).

[145] 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?

[146] As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, 2000 ONSC 22560, [2000] O.J. No. 453, (Ont. Fam. Ct.).

[147] The court cannot take judicial notice that just because a person is on disability 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.

[148] 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, 2006 ONCA 26573.

[149] 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 ONSC 46927, [2008] O.J. No. 3616, (Ont. S.C.); Maimone v. Maimone, 2009 ONSC 25981, [2009] O.J. No. 2140, (Ont. S.C.). The parent must make full and complete financial disclosure to ensure that the information required to make a decision on the issue is before the court. See: Charron v. Carriere, 2016 ONSC 4719.

[150] 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.

[151] If, in fact, the father is no longer working, the court finds that he is deliberately underemployed without valid excuse.

[152] The challenge for the court is to determine how much income the father has been earning or should be earning. He operated his businesses in cash and did not produce any credible documentation about their finances – rather, he denied any involvement with them.

[153] The court draws an adverse inference against the father. He was in possession of this information. He not only failed to produce it, but he has been dishonest about even having it.

[154] The court considered the following factors in determining how much income to impute to the father:

a) The mother’s evidence about the income the father earned at the restaurant and previously at the barbershop.

b) Its adverse inference drawn against the father.

c) That the father earned his income in cash and has not reported it to CRA. Where a parent arranges their affairs to pay substantially less tax on income, the income must be grossed up before the table is applied. The goal is to achieve consistency between payors who pay less income taxes and have more funds available with which to pay support. See: Sarafinchin v. Sarafinchin, 2000 ONSC 22639, 189 D.L.R. (4th) 741 (Ont. S.C.J.).

d) That the business bank account had over $24,000 in it at the end of October 2021.

e) That the father was earning additional cash income for giving haircuts while operating the restaurant.

f) That the father appears to be earning enough income to have his needs met. However, he does not appear to be living a lifestyle anywhere close to warranting the imputation of annual income of $80,000, as requested by the mother.

[155] Taking all these factors into account, the court will impute annual income to the father of $50,000 starting on September 1, 2020 for support purposes. This was calculated by assessing the father’s annual cash income at approximately $42,000 and grossing it up. The court finds that the father has either earned or has been capable of earning this level of income. The guidelines table amount for two children at this income is $755 each month.

[156] The court will not reduce the level of income imputed to the father due to the closure of the restaurant. He closed the restaurant to avoid paying child support – not because of the financial viability of the restaurant.

[157] Further, the father has the ability to earn a similar level of income working as a barber and has likely earned income close to this amount as a barber in the past.

7.4 Section 7 expenses

[158] The mother seeks an order that the father contribute to B.W.’s section 7 expenses – specifically his Montessori expenses.

[159] The mother paid $5,950 for Montessori school for B.W. in 2020 and $3,200 for this expense in 2021.

[160] In her draft order, the mother requested that that the father pay his proportionate share of these expenses (73.3%). [12] She calculated the father’s share of these expenses for 2020 and 2021 at $6,707.

[161] The court has determined that it will calculate support starting on September 1, 2020. Based on 10 months of school, the monthly Montessori cost in 2020 would have been $595, or a total of $2,380 for the 4 months that the court has determined that support is payable by the father to the mother in 2020.

[162] The court finds that the Montessori expense is an eligible section 7 expense. The parties had agreed that it was in B.W.’s best interests to attend Montessori school. The expense was reasonable and necessary.

[163] The guiding principle is that parties should share section 7 expenses in proportion to their incomes. [13] However, the sharing of section 7 expenses is discretionary. The court may apportion the section 7 expenses in a different manner than pro-rata to incomes, depending on the circumstances of the case. See: Salvadori v. Salvadori, 2010 ONCJ 462, [2010] O.J. No. 4425 (OCJ); Buckley v. Blackwood, 2019 ONSC 6918. In these circumstances, it would be unfair to have the mother assume any of the Montessori costs after September 1, 2020. She paid all these expenses prior to September 1, 2020, without contribution from the father. The father improperly collected the CCB for B.W. The father paid the mother virtually no support and he has actively avoided his child support obligations.

[164] The court orders the father to pay the entire Montessori section 7 expense accrued since September 1, 2020, in the amount of $5,580.

7.5 Support credits and payment of arrears

[165] The father claimed that he has made several direct support payments to the mother. The mother denied this. The father provided no documentary proof of payments. He is not credible. The mother said that the father made two $100 support payments in September 2021. He will be credited with these payments.

[166] Given the father’s conduct, the court will not make an order that the arrears created by this order can be paid over time. The father will have to make arrangements with the Family Responsibility Office to pay them.

Part Eight – Conclusion

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

a) The children shall have their primary residence with the mother.

b) Both parties may make decisions about the children’s cultural, language, religious and spiritual training, as they see fit, when the children are in their care. The mother will choose the school that the children attend.

c) The mother shall otherwise have sole decision-making responsibility for the children.

d) The mother shall inform the father of any contemplated significant decision regarding the children, in writing, at least 30 days in advance. Within 10 days after receiving this information, the father may provide the mother with a written response, by email, containing his view. If the parties do not agree, or if the father does not respond within 10 days, the mother shall make the final decision and advise the father about it within 48 hours.

e) The mother shall advise the father in writing of all appointments with any doctors, teachers or other service providers for the children. She shall keep him updated with their names and contact information.

f) The parties shall immediately notify each other by phone, text or email if a child has a medical emergency while in their care. They shall advise the other parent of the nature of the emergency, where the child has been taken for treatment and the name of any doctor treating the child. Both parties shall be permitted to attend while a child is being treated, subject to the rules and policies of the medical facility.

g) The father may obtain information directly from the child’s teachers, doctors, or other service providers. The mother shall execute any authorizations or consents to give effect to this.

h) The parties shall, within 24 hours, advise each other by text or email of any change in their telephone number or email address.

i) The parties shall advise each other by text or email at least 30 days in advance of any change in their residential address. The notice shall include the moving date and new address. However, if any party plans a relocation as defined in the Act, they shall follow the notification process set out in section 39.3 of the Act.

j) The mother shall immediately notify the father in writing if she receives a removal order from Canada.

k) All communication between the parties shall be respectful and child-focused. Neither party will criticize, demean or make disparaging comments about the other parent in the children’s presence. The parties shall also use their best efforts to ensure that the children are not exposed to other persons criticizing, demeaning or making disparaging comments about the other parent to the children, while the children are in their care.

l) The father shall immediately provide the mother with any of the children’s original government identity documents in his possession. If he uses the identity documents for any reason, such as travel, he shall immediately return them to the mother on his return. Only the mother may obtain or renew government documentation for the children, including passports and renewals of passports. She may obtain this documentation without the father’s consent.

m) The father shall have regular parenting time with B.W. starting on Friday, March 4, 2022, on three out of every four weekends, from Fridays at 6 p.m. until Sundays at 6 p.m. The father will have parenting time with B.W. for three consecutive weekends, followed by B.W. spending one weekend with the mother. If there is a statutory holiday on the Monday of the weekend, the father shall return B.W. to the mother on the Mondays at 6 p.m. The father shall also have parenting time with B.W., each Wednesday (starting on March 9, 2022), or on such other midweek day agreed to in writing, from 4:30 p.m. to 7:30 p.m.

n) The father shall have regular parenting time with B.M., starting on Friday, March 4, 2022, on one out of every 4 weekends - specifically the first weekend of the 4-week rotation, at the same times set out in clause (m) above. He shall also have parenting time with B.M., on alternate Wednesdays (starting on March 9, 2022), or on such other midweek day agreed to in writing, from 4:30 p.m. to 7:30 p.m.

o) The holiday schedule shall take priority to the regular schedule and will be as follows:

Winter Break

(i) 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 even-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 odd-numbered years. This is subject to the division of Christmas Eve and Christmas Day set out below.

(ii) The parties shall alternate Christmas Day and Christmas Eve each year. In even-numbered years, the child shall be with the mother from December 24 at noon until December 25 at noon and with the father from noon on December 25 until noon on December 26. In odd-numbered years, the schedule will be reversed.

March Break

(iii) The children shall spend equal time with the parents during the March Break each year. The party who had B.W. for the weekend at the start of the March Break shall have the children in their care until Wednesday at noon, and the other parent shall have the children with them for the balance of the March Break. If the children are with the father, he shall return them to the mother on the Sunday at 6 p.m.

Easter Weekend

(iv) The children shall spend the entire Easter weekend with the mother in even-numbered years and with the father in odd-numbered years.

Summer Vacation

(v) The father may have three weeks of exclusive parenting time with B.W. during B.W.’s summer holiday and one week of exclusive summer holiday time with B.M., to be exercised when B.W. is with him.

(vi) The mother may also have three weeks of exclusive parenting time with the children during the summer.

(vii) The father shall choose his weeks by April 15 in even-numbered years, and by May 15 in odd-numbered years. The mother shall choose her weeks by April 15 in odd-numbered years, and by May 15 in even-numbered years. Notice shall be given by each party to the other in writing by email.

(viii) Regardless of the summer schedule, the children shall spend the weekend prior to the start of school with the mother.

Birthdays

(ix) On the children’s birthdays, they shall remain with the parent according to the regular schedule. The parent shall arrange a video call to the other parent at 5 p.m. or any other convenient time agreed upon in writing.

p) The parties shall have reasonable telephone or video contact to the children when they are in the other’s care.

q) The father shall be responsible for transporting the children for parenting exchanges. He shall exchange the children in the lobby of the mother’s building or at any other location that the mother reasonably requests. He shall not drive the children unless he has a valid Ontario driver’s licence and insurance.

r) The father, or his agents, shall not remove the children from Canada without the prior written and notarized consent of the mother or a prior court order. If the mother consents to the father traveling with the children outside of Canada for a vacation, he shall provide the mother with at least 14 days notice prior to the trip, with a full itinerary of when he will be leaving Canada, where he will be traveling and staying with the children and when he will return to Canada.

s) Once the mother obtains immigration status in Canada, or an authorization from immigration authorities that would permit her to re-enter Canada with the children, she may travel with the children outside of Canada for vacation purposes, when the children are not in school, without the written consent of the father. She shall provide the father with at least 14 days notice prior to the trip, with a full itinerary of when she will be leaving Canada, where she will be traveling and staying with the children and when she will return to Canada.

t) In the event that a vacation taken by the mother occurs during the father’s parenting time, make-up visits shall be arranged upon the mother’s return (or may be taken in advance of the trip, as agreed upon by the parties).

u) Based on annual imputed income of $50,000, the father shall pay child support to the mother of $755 each month, starting on September 1, 2020. This is the guidelines table amount for two children.

v) The father shall forthwith pay the mother $5,580 for section 7 expenses, as calculated in this decision.

w) The father shall take all steps required to ensure that the CCB for the children is paid to the mother.

x) Child support may be enforced against any payments or benefits received by the father from Ontario Works or the Ontario Disability Support Plan, up to the amount prescribed by statute or regulation, currently 10%, and shall be enforceable by way of the support deduction order granted herein, with the enforcement of the such support to be through the Family Responsibility Office for the benefit of the mother.

y) The father shall be credited with $200 support paid to the mother in September 2021. He shall receive no other credits, other than those reflected in the records of the Family Responsibility Office.

z) The father shall provide the mother with complete copies of his income tax returns and his notices of assessment, as well as the corporate returns of any business he operates, by June 30th each year.

aa) The father shall immediately notify the mother if he obtains employment or starts a business and provide her with the name and address of any employer, his job description, work hours and rate of pay, the name and location of any business, as well as documentary proof of the particulars of his income and income source.

bb) A support deduction order shall issue.

[168] If either party seeks costs, they shall serve and file written submissions by March 15, 2022. The other party will then have until March 29, 2022, to serve and file their written response (not to make their own costs submissions). 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.

[169] The court thanks counsel for their efforts in presenting this case.

Released: March 1, 2022

Justice S.B. Sherr

Footnotes:

[1] The court will not list every term sought by the parties in their draft orders – they were extensive. Every term was considered.

[2] This will be discussed in more detail later in this decision.

[3] It appeared to the court that the father and C. had discussed the father’s testimony, contrary to the court’s instructions, when C. readily told the court in his testimony about the time he had taken the father’s phone and texted the mother that he was going to sell the restaurant.

[4] Again, the father blamed his former lawyer for this.

[5] These incidents are set out in detail in her Form 35.1 and were just baldly denied by the father.

[6] One text sent by the father to the mother described how he had the police on his side. The father testified that “I meant that I am a law-abiding citizen, so they are on my side.”

[7] The mother proposed this term for B.W. The court finds that the term is also in B.M.’s best interests.

[8] The father struggled explaining how he supported himself, and ostensibly supported his children from 2017 to 2019 when he had no purported source of income.

[9] The mother provided no evidence of asking the father for support prior to her Answer/Claim.

[10] The Supreme Court in D.B.S. v. S.R.G., 2006 SCC 37; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 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.

[11] The father did not file the required section 52 Evidence Act notice or call the psychologist who prepared the report.

[12] The mother came to this percentage by attributing income of $80,000 to the father and minimum wage income to herself.

[13] See subsection 7 (2) of the guidelines.