Court File and Parties

DATE: October 19, 2023 COURT FILE NO.: D31600/19 ONTARIO COURT OF JUSTICE

B E T W E E N:

MOHAMMAD RATEB AL-HADAD ACTING IN PERSON APPLICANT

- and –

KAIEMA AL-HARASH RESPONDENT ACTING IN PERSON

HEARD: OCTOBER 16-17, 2023

JUSTICE S.B. SHERR

Reasons for Decision

Part One – Introduction

[1] This trial was primarily about the parenting and child support arrangements for the parties’ six-year-old son (the child).

[2] The parties separated on March 30, 2019, when the respondent (the mother) brought the child to Canada from Germany. The mother advised the applicant (the father) on April 16, 2019 that she was going to remain in Canada with the child.

[3] The father subsequently brought an application (the Hague application) to have the child returned to Germany pursuant to the Convention on the Civil Aspects of International Child Abduction (the Hague Convention).

[4] On June 3, 2020, after a trial, Justice Debra Paulseth dismissed the father’s application. See: Al-Hadad v. Al Harash, 2020 ONCJ 269.

[5] The child has remained in Canada with the mother since March 30, 2019.

[6] The father has remained in Germany. He has not seen the child in person since the mother brought the child to Canada. He has not had any contact with the child since April 2022.

[7] The mother issued this application on March 31, 2022. She asks that the court recognize an order dated December 23, 2019, from the Shariah Court in Damascus, in the Syrian Arab Republic (the Syria order), that made her legal custodian of the child and ordered that the child shall reside with her.

[8] In the alternative, the mother seeks orders granting her primary residence and decision-making responsibility for the child and other incidents of parenting.

[9] The mother asks that any in-person parenting time between the father and the child be supervised by a professional supervised parenting agency in Canada. She proposes that the father have virtual parenting time with the children twice each week.

[10] The mother seeks to impute the father’s annual income at $76,500 for support purposes. She seeks an order that the father contribute a proportionate share to the child’s special and extraordinary expenses (section 7 expenses) pursuant to section 7 of the Child Support Guidelines (the guidelines). She asks that the father pay child support retroactive to April 1, 2019, crediting him with any support paid.

[11] Lastly, the mother seeks a restraining order against the father.

[12] The mother filed an affidavit and financial statements as her direct evidence. She was permitted to give additional oral evidence. Her brother also testified. The mother and her brother were cross-examined by the father.

[13] The father opposes the relief sought by the mother.

[14] The father did not file an Answer/Claim, despite extensions granted. However, two weeks prior to the trial, he sent to the court an unsigned application, an unsworn affidavit, an unsworn financial statement and an unsworn Form 35.1 parenting affidavit. The court recognizes its responsibility to provide reasonable assistance to self-represented litigants. See: Pintea v. Johns, 2017 SCC 23. The court permitted the father to fully participate at the trial despite his being in default.

[15] At trial, the father confirmed that he was seeking the relief claimed in his unsigned application. He also affirmed the truth of the contents of his unsworn affidavit, Form 35.1 parenting affidavit and financial statement that he had sent to the court. He was also permitted to give additional oral evidence. The mother cross-examined him.

[16] Both parties attempted to provide additional evidence in their closing submissions. Closing submissions are not evidence and the court did not treat them as such.

[17] The father seeks primary residence and decision-making responsibility for the child. He wants the child to live with him in Germany. He said that he is prepared to facilitate parenting time for the mother. In the alternative, the father seeks joint decision-making responsibility for the child.

[18] If the court orders that the child primarily reside with the mother, the father asks that the child be sent to Germany twice each year to see him. He also seeks virtual parenting time with the child.

[19] The father further seeks orders preventing the mother from removing the child from Canada without his permission and restraining the mother and her family from directly bothering him or his family in Germany, Syria or other countries.

[20] The father asks that if he is required to pay child support that he pay $225 each month on an ongoing basis. He opposes any order for retroactive support.

[21] The mother attended the trial in person. The father attended the trial virtually from Germany. They were both assisted by Arabic interpreters.

[22] The primary issues for trial were as follows:

a) Should the court recognize the Syria order pursuant to section 41 of the Children’s Law Reform Act (the Act)? b) What parenting orders are in the child’s best interests? c) When should child support start? d) What is the father’s income for support purposes in each year that support will be ordered? e) Should the father’s yearly guidelines table obligations be reduced due to undue hardship pursuant to section 10 of the guidelines? f) What contribution should the father make to the child’s section 7 expenses? g) Should a restraining order be made against the father, or in the alternative, should the court make communication and contact orders pursuant to section 28 of the Act?

Part Two – Brief background facts

[23] The mother is 30 years old. The father is 36 years old. They were both born in Syria.

[24] The parties married under Sharia law in Syria in February 2016.

[25] The parties subsequently lived in Germany. The mother came to Canada in 2017 for the birth of the child.

[26] The mother and the child returned to live with the father in Germany in June 2017.

[27] While in Germany, the mother attended university and studied dentistry.

[28] The father attended university in Germany taking a Masters program in pharmaceutical engineering.

[29] The parties resided together until the mother and the child left Germany on March 30, 2019 and came to Canada.

[30] The mother advised the father on April 16, 2019, that she and the child were not returning to Germany. The father started his Hague application on December 14, 2019.

[31] On December 23, 2019, the mother obtained the Syria order.

[32] The Hague application went to trial. Both parties had counsel. On June 3, 2020, the father’s application was dismissed.

[33] On October 20, 2020, the mother obtained a divorce order in Syria. The divorce order did not deal with parenting or support issues.

[34] The mother issued this application on March 31, 2022.

[35] On October 27, 2022, the case management judge, Justice Danielle Szandtner, made a temporary without prejudice order that the father pay the mother child support of $225 each month, starting on November 1, 2022, based on an annual income of $27,230.

[36] The mother remarried in Toronto in April 2023. She, her husband and the child live with the mother’s parents in Toronto.

[37] The mother is studying to become accredited as a dentist in Ontario. She failed her exams in the summer of 2023 and plans to take them again. She is in receipt of social assistance. She deposed that her husband is in school.

[38] The father is employed full-time in Germany working in Quality Control.

Part Three – Parenting issues

3.1 Overview of the positions of the parties

[39] The mother asks the court to recognize the Syria order.

[40] If the court does not recognize the Syria order, the mother seeks primary residence and sole decision-making responsibility for the child.

[41] The mother seeks to obtain government documentation for the child and to be able to travel outside of Canada with the child without the father’s consent. She also seeks an order that the father not be permitted to remove the child from Canada.

[42] The mother claims that the father perpetuated serious family violence against her and the child. She says that there is no effective communication between her and the father and that a joint decision-making responsibility order is not viable.

[43] The mother deposed that she has made responsible decisions for the child and that the child is thriving in her care.

[44] The mother asks for an order that the father have in-person parenting time in Canada by a professional supervised parenting agency. She seeks a schedule for virtual parenting time between the father and the child.

[45] The mother attested that she tried to facilitate virtual parenting time for the father after she came to Canada. However, she said that the father used this parenting time as an opportunity to verbally abuse her and inappropriately question the child about her. She stopped the virtual parenting time in April 2022.

[46] The father asks for an order that the child live with him in Germany and that he be given decision-making responsibility. He says that he was a fully involved parent for the child until the mother “kidnapped” the child and brought him to Canada.

[47] The father testified that other than one incident that took place in February 2019 regarding the mother, he has not committed any family violence. He deposed that the mother concocted her allegations to remain with the child in Canada.

[48] The father claims that the mother has frustrated his ability to have a relationship with the child and that by doing so she is abusing both him and the child.

[49] If the court decides that the child should reside with the mother, the father seeks joint decision-making responsibility for the child. He relies on a contract that the parties entered into in 2017 in Germany after the child was born (the Germany agreement) in support of this claim. The parties were living together at the time. The Germany agreement said that the parties have joint custody of the child.

[50] If the court orders that the child live with the mother, the father asks that the child be sent to Germany to have parenting time with him twice each year. He also seeks virtual parenting time with the child. He denies ever having acted inappropriately on virtual calls, as alleged by the mother.

3.2 The Hague decision

3.2.1 Findings of fact

[51] In her decision dismissing the Hague application, Justice Paulseth made the following findings of fact:

a) There was a pattern over two years of the father hitting and kicking and pounding the mother on her head (par. 54). b) The cumulative pattern of physical abuse was severe and significant, because: i) The abuse occurred over two years; ii) The father kept apologizing and saying it wouldn’t happen again and it did; iii) The father denied the abuse; iv) The mother only gave some examples but said there were more. She appeared very reticent throughout her evidence. She did not want to exaggerate; v) The mother was afraid of the father and actually tried to leave him on more than one occasion; and vi) The violence appeared to be escalating – it began with denigrating comments and strikes with his hand and fist and progressed to violent kicking (par. 55). c) The father kept the mother isolated. His examples of English classes and teaching at the mosque did nothing to dispel the mother’s description of the oppressive nature of life with him (par. 57). d) The mother endured a pattern of coercive and controlling behaviour at the hands of the father because: i) The father did not permit her to leave the apartment without his agreement; ii) The father did not permit her to open the curtains; iii) Initially, the father would not let her have a bank card. iv) The father made rules for the mother like “you must only do what I say” and “I am the only one who has a say in this house”; and v) The father called her very demeaning names (par. 61). e) The father’s conduct towards the child left the child on more than one occasion crying and sobbing (par. 64). f) Since the form of the parties’ marriage was not legal in Germany, the parents signed a joint custody agreement to support their student loan application (par. 23).

[52] Justice Paulseth concluded her findings at paragraphs 73-74 of her decision as follows:

[73] In this case, there is a constellation of factors which cannot be considered in isolation. The factors include: physical and emotional abuse of the mother, emotional abuse of the child, control over the mother and child, isolation of the mother and child, and the unique nature of the isolation of the community.

[74] Based on all of the evidence, I am more than satisfied that there is a grave risk that the child would be exposed to ongoing physiological and psychological harm if returned to Germany. Ongoing abusive conduct by the father towards the mother and the child is more than likely and would place the child in an intolerable situation.

3.2.2 Res judicata

[53] The mother submits that this court should rely on Justice Paulseth’s findings in making this decision. The father submits that Justice Paulseth’s findings were wrong and that this court should disregard them.

[54] This raises the issue of whether these findings are res judicata.

[55] The law seeks finality and generally precludes re-litigation of issues already decided. See: W.A.C. v. C.A.F., 2021 ONSC 5140.

[56] Res judicata has two forms: issue estoppel and cause of action estoppel. This case involves issue estoppel. Issue estoppel occurs when the issue has already been decided in a prior proceeding. There are three preconditions to apply issue estoppel: (i) the issue must be the same as the one decided in the prior proceeding; (ii) the prior decision must have been final; and (iii) the parties to the proceedings must be the same. See: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 ([2001] 2 S.C.R. 460 at par. 25).

[57] Even where the requirements for res judicata are met, the court may exercise its discretion and refuse to apply the principle on the grounds that it would cause unfairness or work an injustice. See: Minott v. O’Shanter Development Co., B. v. J., supra.

[58] Although the court always has discretion with respect to the issue of res judicata and can consider fraud, fresh evidence, additional disclosure or issues of fairness, the principle of res judicata provides that generally, a matter cannot be re-litigated once it has been determined on its merits. See: Bemrose v. Fetter, 2007 ONCA 637; A.E. v. A.E., 2021 ONSC 8189; M.P.A.N. v. J.N., 2019 ONCJ 96.

[59] The onus is on the person resisting res judicata to establish that unfairness or injustice would occur if it was applied. See: Schweneke v. The Queen in Right of Ontario, [2000] O.J. No. 298 (OCA).

3.2.3 Analysis

[60] The court finds that the issue of family violence prior to March 30 2019, including the forms and the extent of the violence, is res judicata for the following reasons:

a) This issue was squarely before the court in the Hague application. It was a critical issue in the determination of that matter. The mother relied on the Article 13B defence in the Hague Convention that the child would be at a grave risk that his return to Germany would expose him to physical or psychological harm, or otherwise place him in an intolerable position. The mother had alleged that she was the victim of severe family violence at the hands of the father in support of that defence. b) The conflicting evidence on this issue was fully tested at that trial and findings were made by the trial judge. c) Both parties were represented by counsel at that trial. d) The father had the opportunity of fully presenting his case on this issue at that trial. e) The parties’ recollections of the family violence issues were more recent and likely more reliable at that trial. f) The father stated at this trial that Justice Paulseth’s findings were wrong. However, he did not appeal her decision. g) No new evidence was led at this trial to convince the court to exercise its discretion to not apply the principle of res judicata. h) The father just wanted a do-over. He was determined to relitigate an issue already decided, hoping for a different result. i) Applying the principle of res judicata does not create unfairness or an injustice.

[61] In making this decision, the court will rely upon Justice Paulseth’s findings of fact regarding family violence, including the forms and extent of that violence, as set out in paragraphs 51 and 52 above.

Part Four – The Syria order

[62] The mother asks the court to recognize the Syria order pursuant to section 41 of the Act.

[63] Section 41 of the Act reads as follows:

Enforcement of extra-provincial orders

41 (1) Upon application by any person in whose favour an order granting decision-making responsibility, parenting time or contact with respect to a child has been made by an extra-provincial tribunal, a court shall recognize the order unless the court is satisfied,

(a) that the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made;

(b) that the respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made;

(c) that the law of the place in which the order was made did not require the extra-provincial tribunal to have regard for the best interests of the child;

(d) that the order of the extra-provincial tribunal is contrary to public policy in Ontario; or

(e) that, in accordance with section 22, the extra-provincial tribunal would not have jurisdiction if it were a court in Ontario.

Effect of recognition of order

(2) An order made by an extra-provincial tribunal that is recognized by a court shall be deemed to be an order of the court and enforceable as such.

Conflicting orders

(3) A court presented with conflicting orders made by extra-provincial tribunals granting decision-making responsibility, parenting time or contact with respect to a child that, but for the conflict, would be recognized and enforced by the court under subsection (1) shall recognize and enforce the order that appears to the court to be most in accord with the best interests of the child. R.S.O. 1990, c. C.12, s. 41 (3); 2020, c. 25, Sched. 1, s. 18 (2).

Further orders

(4) A court that has recognized an extra-provincial order may make such further orders under this Part as the court considers necessary to give effect to the order.

[64] In Ndegwa v. Ndegwa, the father proceeded ex parte in Kenya to obtain a temporary custody order. The father argued that once the mother had notice of this order, she still didn’t move to set aside the order, so her defence claimed under clauses 41(1)(a) and (b) of the Act should fail. The court found that “waiting until after the order was made and then serving notice of the commencement of proceedings does not meet the requirement of “reasonable notice of the commencement of the proceeding in which the order was made”. The court also found in paragraph 15 of its decision that: “being heard” entails knowing the case to be met and having the opportunity to address the factual and legal issues in the case.” The court did not recognize or enforce the order from Kenya for these reasons.

[65] Citing Ndegwa, the Ontario Court of Appeal, in British Columbia (Child, Family and Community Service) v. S.J.B., found, pursuant to clause 41 (1) (b) of the Act, that parents in a child protection case did not have a reasonable opportunity to be heard when the Director of Child, Family and Community Service for the Province of British Columbia asked, pursuant to section 41 of the Act, for the Ontario courts to recognize and enforce an order obtained ex parte in British Columbia.

[66] In Brown v. Pulley, 2015 ONCJ 186, the father obtained a without notice chasing order after the mother took the children to Ontario from North Carolina. This court did not apply section 41 of the Act, citing the above cases. The mother was not given notice of the proceedings and did not have a reasonable opportunity to be heard. The same result occurred in W.D.N. v. O.A., 2019 ONCJ 926.

[67] The facts in this case are undisputed. The mother obtained the Syria order without notice to the father. He was not given an opportunity by the Syrian court to be heard. The defences set out in clauses 41 (1) (a) and (b) of the Act apply here. The court will not recognize the Syria order.

Part Five – Parenting orders

5.1 Legal considerations for parenting orders

[68] 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.

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

[70] Subsection 24 (4) of the Act sets out factors relating to family violence and a child’s best interests. Subsections 18 (1) and (2) of the Act define family violence.

[71] 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.

[72] Section 28 of the Act sets out the types of parenting orders the court can make.

[73] 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.

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

[75] The Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22 made the following observations about family violence:

1. The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis (par. 146).
2. The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497. (par. 145).

[76] Justice Deborah Chappel wrote about the importance of family violence as a best interests factor in paragraph 86 of McBennett v. Danis, 2021 ONSC 3610, as follows:

The broad definition of family violence and the specific inclusion of this factor as a mandatory consideration in determining the best interests of children recognize the profound effects that all forms of family violence can have on children. These consequences can be both direct, if a child is exposed to the family violence, or indirect, if the victimized parent’s physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact their ability to meet the child’s physical and emotional needs.

[77] The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275 sets out the following principles in determining whether a joint decision-making responsibility 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.

[78] Mutual trust and respect are basic elements for a joint decision-making responsibility order to work effectively. See: G.T.C. v. S.M.G., 2020 ONCJ 511; T.P. v. A.E., 2021 ONSC 6022; Shokoufimogiman v. Bozorgi, 2022 ONSC 5057; Jacobs and Coulombe v. Blair and Amyotte, 2022 ONSC 3159; El Khatib v. Noun, 2023 ONSC 1667.

[79] Sections 52 (marriage contracts) and 53 (cohabitation agreements) of the Family Law Act set out that parties may agree to the right to direct the education and moral training of their children, but not the right to decision-making responsibility or parenting time with respect to their children. Subsection 56 (1) of the Family Law Act states that in the determination of a matter respecting the education, moral training or decision-making responsibility or parenting time with respect to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child.

[80] In S. (S.) v. K. (S.), 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) if a parent is seeking the order as a mechanism to inappropriately control the other parent.

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

[82] The person seeking supervised parenting time bears the burden of establishing that supervision is necessary. See: Klymenko v. Klymenko, 2020 ONSC 5451.

5.2 Analysis

5.2.1 Primary residence, decision-making responsibility and incidents of parenting

[83] The court places no weight on the Germany agreement. This was entered into in better times when the parties were living together, getting along and had just had the child together. Subsequent events inform the court that a joint decision-making responsibility order is not in the child’s best interests. The agreement is also unenforceable as Ontario law does not permit parties to agree to decision-making responsibility with respect to their children in a marriage or cohabitation agreement. The court will disregard the joint custody provision in the Germany agreement.

[84] The evidence was overwhelming that it is in the child’s best interests to have his primary residence with the mother and for her to have sole decision-making responsibility for the child for the following reasons:

a) The child has exclusively lived with the mother since he turned two years old. b) The child has his closest connection with the mother. c) The child has close connections with his maternal grandparents, the mother’s husband and the mother’s extended family. d) The child’s life has been in Canada. This is where his family, friends and school are. e) The mother has done an excellent job in raising the child. He is loved and well-cared for. The mother properly attends to his physical and emotional needs. She ensures that he is involved in extra-curricular activities and religious education. f) The child has not seen the father in person since just before his second birthday. He has not had virtual parenting time with the father since April 2022. He does not have a close relationship with his father. g) The father has made no attempt to see the child in Canada. He wants the child to come and live with him in Germany. Initially, there may have been some limitations in the father’s ability to come to Canada since he was a refugee claimant. However, that barrier ended in August 2022 when the father became a German citizen. It is also noteworthy that the father never brought a motion for parenting time in this case, despite numerous court attendances. The father’s stated commitment to the child is not consistent with his actions. h) The father’s lack of commitment to the child is also reflected by his underpayment of child support. This will be reviewed in more detail below. 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; J.T. v. E.J., 2022 ONSC 4956; Shokoufimogiman v. Bozorgi, 2022 ONSC 5057. i) The father’s plan to uproot the child from his primary caregiver and his life in Canada to live with him in Germany reveals a significant lack of understanding of child development and how this could emotionally harm the child. It also reveals that he is willing to place his own needs ahead of those of the child. Another plausible interpretation of his taking this position is that it is a continuation of his pattern of trying to control and intimidate the mother by putting her through the uncertainty and emotional distress of litigating the issues of the child’s residence and decision-making responsibility. j) Justice Paulseth has already found that the child would be at a grave risk that his return to Germany would expose him to physical or psychological harm, or otherwise place him in an intolerable position. More than three years later this finding is even more resonant as the child has become more secure and established in Canada. k) Justice Paulseth found that the mother was the victim of severe family violence at the hands of the father. This violence was physical, emotional and psychological. Justice Paulseth found that the father was coercive and controlling towards the mother. She made findings about how distressed the child was by the father’s conduct. l) Justice Paulseth found that the father minimized his conduct and showed little insight into it at the trial of the Hague application. The father acted in the same manner at this trial. He was aggressive and argumentative towards the mother. He acted in a domineering fashion when the mother questioned him, giving long-winded and tangential answers. He was sometimes evasive and sometimes sarcastic, answering some questions by telling her to read his affidavit. He accused the mother of kidnapping and abusing the child. He called her ignorant for not understanding this. m) The severity of family violence makes a joint decision-making responsibility order a non-starter in this case. n) The mother fears the father. There is a significant power imbalance between them. o) There is no effective communication between the parties and the court will not force the mother to communicate with the father in these circumstances. p) There is no mutual trust or respect between the parties. q) The evidence indicates that the father would try to use a joint decision-making responsibility order to try and control the mother. r) The physical distance between the parties also makes a joint decision-making responsibility order unrealistic.

[85] The court finds that it is in the child’s best interests to make orders that the mother may travel with the child outside of Canada and obtain government documentation for him without the father’s consent. These incidents of parenting are important to the child and should not be obstructed.

[86] The court has no confidence that the father would provide these consents to the mother in a timely manner. He is hostile towards the mother. His conduct in this case reveals that he is very difficult to deal with. He was ordered several times in this case to file financial disclosure. He did not produce this until just before the trial, with unsworn documents, in a scattered manner. He never filed an Answer/Claim, despite extensions, leaving his position unclear.

[87] The father seeks an order that the mother cannot take the child to another country without his consent. It is not in the child’s best interests to make this order, as the court does not believe that the father would exercise his consent reasonably. However, the mother will be required to follow the provisions set out in section 39.3 of the Act if she intends to relocate with the child. [1]

[88] The court will provide some rights to the father concerning information about the child in this order.

5.2.2 Parenting time

[89] The court agrees with the mother that it is in the best interests of the child that any in-person parenting time with the father take place in Canada and be fully supervised by a professional supervised parenting agency, such as Access for Parents and Children in Ontario (APCO) or Braydon Supervised Services.

[90] The supervision is necessary for the father to develop a relationship with the child in a safe setting where neutral professionals can provide feedback about the visits.

[91] The child has no real relationship with the father and the child will need to get to know the father.

[92] There have been findings that the father is abusive and controlling. The evidence also shows that the father exercises poor judgment. There is a real possibility that he would attempt to demean and undermine the mother to the child if left alone with the child. This would risk emotionally distressing and confusing the child. Supervision is required until such time as the father can show that he will exercise his parenting time appropriately.

[93] Based on the findings made above, it is definitely not in the child’s best interests to travel to Germany to have parenting time with the father.

[94] The mother proposed that the father arrange virtual parenting time two times each week and contact the child directly on his I-pad. She wants no contact with the father. The court does not view this as a good parenting time plan for the child. The child is too young to be placed in this position with the father.

[95] The court is also very concerned that the father would use virtual parenting time with the child as an opportunity to harass the mother or demean the mother to the child. The court accepts that the mother stopped the virtual parenting time between the father and the child because the father was acting inappropriately on his virtual calls. Based on the father’s attitude towards the mother at trial nothing has changed since the virtual calls ended in April 2022. The father remains very angry at the mother.

[96] At this time, it is in the child’s best interests to have the virtual parenting time with his father supervised by a professional parenting time agency to ensure that it is a positive experience for the child. APCO offers this service. The court will make an order that both parents register with APCO in order that it may supervise virtual parenting time.

[97] The court will require the father to pay the costs of any professional parenting time service.

Part Six – Start date for child support

6.1 Positions of the parties

[98] The mother asks that child support be retroactive to the date of separation – March 30, 2019.

[99] The father asks that child support only be ordered on an ongoing basis.

6.2 Legal considerations

[100] The mother issued her application on March 31, 2022. Support since that date is prospective support and is presumptively payable. See: Mackinnon v. Mackinnon. The support claimed by the mother before that date requires a retroactive support analysis.

[101] 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.

[102] This framework in Colucci addressed 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.

[103] 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 [2] 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. See: L.S. v. M.A.F., 2021 ONCJ 554; M.A. v. M.E., 2021 ONCJ 555; A.E. v. A.E., 2021 ONSC 8189; M.K. v. K.M., 2022 ONCJ 424; T.B. v. O.T., 2023 ONCJ 35; V.S.B. v. B.L.O., 2022 ONCJ 506; Mohamoud v. Farah, 2023 ONCJ 103.

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

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

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

[107] The first step in the retroactive support analysis is to determine the presumptive start date of support. This will be the date when the mother gave effective notice to the father, provided that this date is not more than three years before the date of formal notice – in this case, as in most cases, the date of the application.

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

[109] In Michel, at paragraph 121, the Supreme Court of Canada emphasized the importance of support payors meeting their support obligations and commented that the neglect or underpayment of support is strongly connected to child poverty and female poverty.

[110] In considering delay, courts should look at whether the reason for delay is understandable, not whether there was a reasonable excuse for the delay. The latter consideration works to implicitly attribute blame onto parents who delay applications for child support. See: Michel, par. 121.

[111] A delay, in itself, is not inherently unreasonable and the mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted. See: Michel, par. 113.

[112] Rather, a delay will be prejudicial only if it is deemed to be unreasonable, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made. See: Michel, par. 86.

[113] The failure of a payor to disclose actual income, a fact within the knowledge of the payor, is blameworthy conduct that eliminates any need to protect the payor’s interest in certainty. (Michel – par. 34).

[114] Courts should apply an expansive definition of blameworthy conduct. See: D.B.S., par. 106.

[115] Blameworthy conduct is anything that privileges the payor parent’s own interests over his or her children’s right to an appropriate amount of support. See: D.B.S., par. 106.

[116] Blameworthy conduct is not a necessary trigger to the payor’s obligation to pay the claimed child support. Where present, it weighs in favour of an award and may also serve to expand the temporal scope of the retroactive award. See: Michel, par. 119.

[117] There are plenty of circumstances where a parent will absorb the hardship that accompanies a dearth of child support to prioritize their child’s well-being. There is absolutely no principled reason why this parent should receive any less support as a result of choices that protect the child (Michel - par. 123).

[118] The fact that the child did not have to suffer hardship because of their custodial parent’s sacrifice is not one that weighs against making a retroactive support order. Rather, the recipient parent’s hardship, like that of a child, weighs in favour of the retroactive support award and an enlarged temporal scope (Michel - par. 123).

[119] If there is the potential for hardship to the payor, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of hardship. In all cases, hardship may be addressed by the form of payment. See: Michel, par. 124.

[120] While the focus is on hardship to the payor, that hardship can only be assessed after taking into account the hardship which would be caused to the child and the recipient parent from not ordering the payment of sums owing but unpaid (Michel - par. 125).

6.3 Analysis

[121] The mother testified that she first asked the father for child support in October 2020. The father claims that the mother never asked him for child support and that he offered her child support in May 2021. Neither party was certain of these dates. Neither party provided documentation. Given this uncertainty, the court finds that the mother gave the father effective notice of her claim for support on January 1, 2021. This is the presumptive start date for support.

[122] The court next needs to determine if it will deviate from this presumptive start date.

[123] The mother provided a partially understandable reason for her delay in seeking child support. She was initially focused on the Hague application. Then she was focused on qualifying to become a dentist while raising the child. She explained difficulties in obtaining legal aid and counsel to assist her in this process. She eventually started the case on her own. She was also the victim of family violence and delayed in reengaging with the father knowing that this would be a difficult process with him.

[124] The father has considerably underpaid support. His financial disclosure has been partial, late and incomplete. [3] This was blameworthy conduct.

[125] The father frequently pointed out at trial that he has been paying child support in accordance with the temporary court order of Justice Szandtner. This was disingenuous. Justice Szandtner made this order on a temporary without prejudice basis. She also endorsed the following on October 7, 2022:

Father’s financial statement reflects a salary of $69,678.55. He is only willing to consent to an order of $225 per month at this time.

[126] The court accepts the father’s evidence that he made attempts to start paying child support in 2021. He asked for an account number and the mother did not want to provide this to him. Instead, she wanted child support paid through intermediaries. This was not blameworthy conduct by the father. The mother eventually set up a bank account in the child’s name and support has been flowing since March 2022, although not in the proper amount.

[127] The circumstances of the child have not been disadvantaged. However, this is only because the child has been supported by the mother’s extended family.

[128] A retroactive order will cause the father some hardship. He has student loans and family debt. However, not receiving a retroactive order will cause the mother and the child hardship. The father’s hardship can be addressed through a payment order for his arrears over a reasonable period of time.

[129] The court also considered that the father was in school full-time from 2017 until November 2020 taking his Masters program. This program was started before the child was born. It has enabled the father to earn a good income to support the child at this time and in the future. He had previously worked in marketing at a lower income. The court finds that it was reasonable for the father to take this program.

[130] The court would not have imputed income to the father for the period from April 1, 2019 until December 31, 2020. It was not realistic to expect the father to work while he was taking his Masters program. The university was 60 km from the parties’ home. The father spent considerable time most days traveling so that he could attend this program.

[131] The father found work on February 1, 2021.

[132] Taking into account all of these factors, the court will not deviate from the presumptive start date of support of January 1, 2021.

Part Seven – The father’s income and table support

[133] When a support payor lives outside of Canada, the court is required to apply the guidelines table amount where the support recipient resides. That is Ontario. See: Clause 3 (3) (b) of the guidelines.

[134] The mother asks that the father’s income be imputed at $76,500 annually.

[135] The court finds that there is no need to impute income to the father since his income is known. He has been earning what he is capable of earning.

[136] The father first found work on February 1, 2021 as a trainee. He subsequently obtained a contract to work in Quality Control.

[137] The father testified that he is paid in euros. The conversion rate to Canadian dollars fluctuates. The father indicated that it is about 1.43. The court accepts this figure. [4]

[138] The father deposed that he grossed 1539.4 euros each month from February 1, 2021 until the end of June 2021. This converts to $2201.34 each month Canadian for a total of $11,006.71.

[139] The father deposed that he grossed 3200 euros each month from July 1, 2021 until March 31, 2022. This converts to $4,576 each month Canadian. For the last six months of 2021, this totals $27,456, resulting in a total 2021 income of $38,462.71. The guidelines table amount for one child at this income is $341 each month.

[140] The father’s gross income from January 1, 2022 until March 31, 2022 was $13,728 Canadian ($4,576 for three months). The father testified that his gross monthly income increased from April 1, 2022 to the end of 2022 to 4,319 euros each month. This converts to $6,176.17 Canadian. For the last nine months of 2022, this totals $55,585.53. The father’s total 2022 income was $69,313.53. The guidelines table amount for one child at this income is $647 each month.

[141] The father attested that his 2023 income is 4,459 euros each month. This converts to $6,376.37 each month Canadian. This projects to an annual income of $76,516.44. The guidelines table amount for one child at this income is $713 each month.

[142] The father claimed that his contract will expire at the end of 2023. Given his avoidance in providing financial disclosure to the mother and the court, and his underpayment of child support, the court is not prepared to adjust his income on an ongoing basis. The father is highly trained and skilled and should be able to find gainful employment if his contract is not renewed.

Part Eight – Father’s claim for undue hardship

[143] Notwithstanding the table amounts set out above, the father asks the court to only order him to pay child support of $225 each month. Even though he did not specifically plead this, it was apparent that the father was making an undue hardship claim.

[144] Undue hardship claims are governed by section 10 of the guidelines which reads as follows:

Undue hardship

10. (1) On the application of either spouse or an mother under section 33 of the Act, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the parent or spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

Circumstances that may cause undue hardship

(2) Circumstances that may cause a parent, spouse or child to suffer undue hardship include,

(a) the parent or spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living;

(b) the parent or spouse has unusually high expenses in relation to exercising access to a child;

(c) the parent or spouse has a legal duty under a judgment, order or written separation agreement to support any person;

(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is,

(i) under the age of majority, or

(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life;

(e) the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age of majority or who is enrolled in a full time course of education;

(f) the parent or spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

Standards of living must be considered

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the parent or spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other parent or spouse.

Standards of living test

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.

Reasonable time

(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the order for child support, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.

Reasons

(6) Where the court makes an order for the support of a child in a different amount under this section, it must record its reasons for doing so.

[145] It is very difficult to make out a successful undue hardship claim under section 10 of the guidelines. There are three parts to the test:

1. The person making this claim must show that there are circumstances that could create undue hardship.
2. If this is the case, the person making the claim must show that his or her standard of living is lower than that of the responding party’s.
3. If the first two parts of the test are made out, the court has the discretion to make a support order different than the table amount, based on the means, needs and circumstances of the parties.

See: Matthews v. Matthews, [2001] O.J. No. 876 (SCJ).

[146] The father must prove more than hardship. He must show that the hardship is exceptional, excessive or disproportionate, not merely awkward or inconvenient. See: Hanmore v. Hanmore, 2000 ABCA 57.

[147] The father has the onus of providing adequate supporting documentation to prove his undue hardship claim. See: Van Gool v. Van Gool.

[148] The father did not come close to meeting this strict test. He did not provide documentation to establish hardship. He did not prove that any hardship is exceptional, excessive or disproportionate.

[149] The father claimed hardship due to having to support his family in Syria. However, his obligations to the child come first.

[150] The father provided no evidence that his standard of living is lower than the mother’s.

[151] The father’s claim for undue hardship is dismissed. He will pay support in accordance with the guidelines.

Part Nine – Section 7 expenses

[152] The mother made some modest claims for the father to contribute to the child’s section 7 expenses. She alluded to other section 7 expenses but provided no evidence of them. The court will restrict its analysis to the expenses actually claimed in her trial affidavit.

[153] The court finds that the expenses claimed by the mother qualify as special or extraordinary expenses pursuant to section 7 of the guidelines.

[154] The court finds that the claimed expenses are reasonable and necessary for the child’s medical needs, social development and religious education.

[155] The eligible section 7 expenses claimed by the mother are as follows:

Year	Expense	Amount
2022	Camp	$791
	Dental	$134
	Muslim School	$420
2023	Camp	$150
	TOTAL	$1,495

[156] Pursuant to subsection 7 (2) of the guidelines, the guiding principle is that section 7 expenses should be shared by the parties in proportion to their respective incomes. However, the court has the discretion to deviate from the guiding principle. The court finds that the mother should contribute some portion to these expenses. It will order the father to pay 80% of the section 7 expenses accrued to date, for a total of $1,196. The mother will be responsible for the other 20% of these expenses.

[157] The court will also order the father to pay 80% of future section 7 expenses, to include camp, medical expenses and religious school. He shall pay his share of these expenses within 30 days of the mother providing him with receipts. If the parties disagree on what constitutes a section 7 expense, or the eligible amounts of the expenses, they may return to court for a determination.

Part Ten – Insurance and medical coverage

[158] The mother seeks an order that the father provide extended health coverage for the child and to designate him as an irrevocable beneficiary on a life insurance policy.

[159] The court will not make these orders as the father does not have extended health coverage available to him and does not have an insurance policy.

Part Eleven – Support credits, arrears and payment of arrears

[160] The court accepts the father’s evidence that he has paid child support of $4,042 since March 2022. He will be credited for this amount.

[161] Based on this order, the father is in arrears of child support in the amount of $16,140 calculated as follows:

Item	Calculation	Amount
2021	$341 each month x 12 months	$4,092
2022	$647 each month x 12 months	$7,764
2023	$713 each month x 10 months	$7,130
Section 7 expenses owing		$1,196
Total support accumulated		$20,272
Less support credit		-$4,042
Balance		$16,140

[162] The court will permit the father to pay these arrears over approximately three years at $450 each month. However, if he is more than 30 days late in making any ongoing or arrears support payment, the entire amount of arrears then owing shall immediately become due and payable.

Part Twelve – Restraining order

12.1 Legal considerations

[163] The mother’s request for a restraining order is made pursuant to section 35 of the Act. Subsections 35 (1) and (2) of the Act read as follows:

Restraining order

35 (1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 15.

Provisions of order

(2) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.
2. Restraining the respondent from coming within a specified distance of one or more locations.
3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
4. Any other provision that the court considers appropriate.

[164] Clause 28 (1) (c) of the Act sets out contact and communication orders that the court is permitted to make. It reads as follows:

Parenting Orders and Contact Orders

28 (1) The court to which an application is made under section 21,

(c) may make any additional order the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

[165] This court recently set out the legal principles to apply in determining whether to grant a restraining order in G.P. v. R.P., 2023 ONCJ 437 as follows:

a) Restraining orders are serious and should not be ordered unless a clear case has been made out. See: Ciffolillo v. Niewelglowski, 2007 ONCJ 469. b) Courts should not order restraining orders in borderline cases just to be cautious. That ignores the test and the onus of proof. See: A.H. v. M.T., 2023 ONSC 2365. c) A restraining order is serious, with criminal consequences if there is a breach. It will also likely appear if prospective employers conduct a criminal record (CPIC) search. This could adversely affect a person’s ability to work. It may affect a person’s immigration status. See: F.K. v. M.C., 2017 ONCJ 181. d) It is not sufficient to argue that there would be no harm in granting the order. See: Edwards v. Tronick-Wehring, 2004 ONCJ 195. e) Courts should be hesitant to make the order simply because there was a similar order in place before that has now expired. Orders expire. See: A.H. v. M.T., supra. f) Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds for the person to fear for his or her own safety or for the safety of their child”. See: McCall v. Res, 2013 ONCJ 254. g) The test for a restraining order is both objective and subjective. The legislation itself makes that clear, as an entirely subjective test would have no use for the words “reasonable grounds” as a qualifier to the fear(s) expressed by the requesting party. See: A.H. v. M.T., supra; McGowan v. McGowan, 2018 ONSC 5950, at paragraph 38. [5] h) The relief is discretionary. While there are subjective and objective elements in the test, more is required than an expression of concern. There must be evidence as to specific events and a connection to the present situation. See: Noriega v. Litke, 2020 ONSC 2970; S.S.L. v. M.A.B., 2022 ONSC 6326. i) It is not necessary for a respondent to have actually committed an act, gesture or words of harassment to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. See: Fuda v. Fuda, 2011 ONSC 154, supra. j) A restraining order cannot be issued to forestall every perceived fear of insult or possible harm without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears. See: Fuda v. Fuda, supra. k) A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. See: Purewal v. Purewal, 2004 ONCJ 195. l) Courts should have regard for the passage of time. Events that once triggered a temporary restraining order may not be so compelling on the issue of a permanent order. See: D.C. v. M.T.C., 2015 ONCJ 242; Jumale v. Mahamed, 2022 ONSC 566. m) In borderline cases, the court must consider what other protections may be available if a restraining order is not granted. See: D.C. v. M.T.C., supra; M.H.S. v. M.R., 2021 ONCJ 665. n) It is appropriate, in borderline cases, to consider the balancing prejudice to the respondent if the restraining order is granted. See: D.C. v. M.T.C., supra; M.H.S. v. M.R., supra. o) A court is not precluded from making a final restraining order if a party has complied with a temporary order under section 28 of the Act. On a temporary motion, the court does not have the benefit of the fulsome record it has at trial. Cross-examination at trial can provide valuable information in the court’s risk assessment. Further, the court should be alert to the fact that parties may improve their behaviour when the eyes of the court are on them. This might not continue once the case ends. See: F.K. v. M.C., supra.

12.2 Analysis

[166] The court finds that there should be restrictions on the father’s communication and contact with the mother and the child for the following reasons:

a) The father has perpetuated severe family violence against the mother. b) The father minimizes and denies this conduct. c) The conduct took place in the presence of the child who was adversely affected. d) There is a significant power imbalance between the mother and the father. e) The father has perpetuated his abuse and control of the mother by forcing her through this trial over primary residence and decision-making responsibility for the child when his claims had absolutely no merit. f) The father has financially abused the mother by significantly underpaying child support. g) The father continues to demean the mother. h) The mother is afraid of the father. Requiring her to have contact with the father risks emotionally destabilizing her. This is not in the child’s best interests.

[167] The mother claimed at this trial that the father has been threatening her in text messages since the Hague application. She attached messages to her affidavit that were in Arabic that she claimed proved this. However, once translated, they did not establish her claim, other than one text where the father said he would tell the child in the future how the mother had denied his being able to see him.

[168] The court considered that there has been no physical violence since March 30, 2019 and no contact at all between the parties since April 2022. The parties live far apart.

[169] The court has also considered that the father’s ability to enter Canada to see the child might be adversely affected by a restraining order.

[170] The court finds that a no contact and communication order pursuant to section 28 of the Act is sufficient to protect the mother and the child.

[171] The father also made a late claim in his unsigned application for a restraining order against the mother, her husband and family members. The third parties were not served with this claim and the court will not consider it. There was no merit to the father’s claim against the mother and it is dismissed.

Part Eleven – Conclusion

[172] A final order shall go as follows:

Parenting

a) The child’s residence shall be with the mother. b) The mother shall have sole decision-making responsibility for the child. c) The mother may obtain or renew government documentation for the child, including passports, without the father’s consent. d) The mother may travel with the child outside of Canada, for vacation purposes, without the father’s consent. e) The mother shall send the father copies of the child’s report cards and inform the father of any major medical issue affecting the child. She may designate a third party to do this on her behalf. f) The father’s parenting time, whether in person in Canada, or virtual, shall be supervised by a professional parenting time agency. g) The case shall be referred to APCO for the virtual supervised parenting time. It shall take place once each week for up to 30 minutes, at times to be coordinated through APCO. h) Any in-person supervised parenting time shall be once each week for up to one hour, at times to be coordinated through APCO, once APCO is able to start the visits. i) The parties are to immediately contact APCO to complete the intake process. j) If APCO is unable to supervise the virtual visits, the parties are to contact another professional supervised parenting agency to supervise the visits. k) The father shall pay all costs of the professional parenting time supervisors. l) The father may have such further and other parenting time as the parties agree to in writing. m) The father shall not remove the child from the City of Toronto without the mother’s written consent.

Communication and contact

n) Pursuant to section 28 of the Act:

i) The father shall not communicate with or contact the mother, except in accordance with any family court order or with her written consent. ii) The father shall not communicate with or contact the child, except while exercising his parenting time. iii) The respondent shall not attend within 100 metres of the mother’s home, the child’s school, or any other place that they may reasonably expected to be, subject to the father exercising parenting time in accordance with this court order.

Child support

o) Starting on January 1, 2021, the father shall pay the mother child support of $341 each month. This is the guidelines table amount for one child based on his income of $38,462.71. p) Starting on January 1, 2022, the father shall pay the mother child support of $647 each month. This is the guidelines table amount for one child based on his income of $69,313.53. q) Starting on January 1, 2023, the father shall pay the mother child support of $713 each month. This is the guidelines table amount for one child based on his income of $76,516.44. r) The father shall be credited with child support paid of $4,042. s) The father shall pay the mother $1,196 for his share of the child’s section 7 expenses to date, being medical, camp and religious school expenses. t) The father shall pay 80% of the child’s future section 7 expenses after this date. These shall include, but are not limited to, medical, camp and religious school expenses. The mother shall provide the father with receipts for these expenses and he shall pay his share within 30 days. If the parties disagree on what constitutes a section 7 expense, or the eligible amount of the expense, they may return to court for a determination. u) The father’s support arrears are fixed at $16,140, as calculated in this decision. v) The father may pay the support arrears at $450 each month, starting on December 1, 2023. However, if he is more than 30 days late in making any ongoing or arrears support payments, the entire amount then owing shall immediately become due and payable. w) Nothing in this order precludes the Family Responsibility Office from collecting arrears from any government source, or lottery or prize winnings. x) The father shall provide the mother with complete copies of his income tax returns and notices of assessment by June 30th each year. y) The father shall immediately advise the mother if he obtains new employment and provide her with the name and address of the employer, a copy of any employment contract and his first three pay statements. z) A support deduction order shall issue.

Other claims

aa) All other claims made by the parties not addressed in this decision are dismissed.

[173] The mother is the successful party in this case. If she wishes to seek costs, she shall serve and file written submissions by October 31, 2023. The father will then have until November 14, 2023 to serve and file his written response. The submissions shall not exceed three pages, double-spaced, not including any offer to settle or bill of costs. The submissions should be sent directly to the trial coordinator’s office.

Released: October 19, 2023

Justice Stanley B. Sherr

Footnotes

[1] Subsections 39.3 (1) and (2) of the Act read as follows:

Relocation

39.3 (1) 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.

Notice requirements

(2) The notice shall be in the form prescribed by the regulations or, if no form is prescribed, shall be in writing and shall set out,

(a) the expected date of the proposed relocation; (b) the address of the new residence and contact information of the person or child, as the case may be; (c) a proposal as to how decision-making responsibility, parenting time or contact, as the case may be, could be exercised; and (d) any other information that may be prescribed by the regulations.

[2] See: D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37. These factors are:

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.

[3] Much of the financial disclosure provided by the father was in German and not translated.

[4] The court received no evidence about German tax rates compared to Canadian tax rates so it will not factor that into these calculations.

[5] The court notes that there is jurisprudence the person’s fear may be entirely subjective so long as it is legitimate. See: Fuda v. Fuda, 2011 ONSC 154, 2011 CarswellOnt 146 (Ont. SCJ); McCall v. Res, supra. A person’s subjective fear can extend to both the person’s physical safety and psychological safety. See: Azimi v. Mirzaei, 2010 ONSC 2600.