DATE: January 28, 2025

COURT FILE NO. D43335/22

ONTARIO COURT OF JUSTICE

B E T W E E N:

A.S.A.
Theodora J. Oprea and Stephanie Okola, for the APPLICANT
APPLICANT

• and –

T.I.
Omer S. Chaudhry, for the RESPONDENT
RESPONDENT

HEARD: JANUARY 20-24, 2025
JUSTICE: S.B. Sherr

REASONS FOR DECISION

Part One – Introduction

[1] This trial was about the parenting and child support arrangements for the parties’ 8-year-old daughter (the child). The dominant issue was whether it is in the child’s best interests to permit the applicant (the mother) to relocate with the child to Franklin, Wisconsin once the child’s school year ends.[1]

[2] The mother seeks sole decision-making responsibility for the child and other incidents of decision-making, including the right to obtain and renew government documentation for the child and to travel internationally with the child, without the respondent’s (the father’s) consent. She proposed a parenting time schedule for the father to include extended time with the child during the summer, winter and spring school breaks and on holidays. She also sought terms of communication between the parties.[2]

[3] The father opposes the mother’s relocation request. He seeks orders for joint decision-making responsibility for the child, or in the alternative, a parallel decision-making responsibility order. If the mother relocates without the child to the United States, he seeks primary residence and sole decision-making responsibility for the child.

[4] The father seeks an equal parenting time schedule if the child remains in Canada. He proposed a parenting schedule for the mother if she relocates without the child to the United States.

[5] The father also seeks orders for incidents of decision-making responsibility and communication between the parties.

[6] In closing submissions, the parties agreed that the father should pay child support to the mother of $824 each month, starting on August 1, 2022. This is the Child Support Guidelines (the guidelines) table amount for one child based on an annual imputed income to the father of $88,800.

[7] The mother asks for this amount of child support to be paid on an ongoing basis. The father asks that ongoing child support be calculated pursuant to section 9 of the guidelines, based on a shared parenting arrangement.[3] He asks the court to assess his annual income at $60,000 and to impute the mother’s annual income at $35,776 (full-time minimum wage) for the purpose of this analysis.

[8] The mother seeks ongoing spousal support of $2,000 each month from the father, for a duration of four years, if she is not permitted to relocate with the child to Wisconsin. She is not seeking spousal support if the court permits the requested relocation.

[9] The father agrees that the mother is entitled to spousal support if she remains with the child in Canada. He agreed to a duration of four years. He opposed the amount of spousal support sought by the mother. He asks that any spousal support calculation be based on an annual income of $60,000 for him and an imputed annual income of $35,776 for the mother. He submitted the court should order spousal support in the mid-range generated by the Spousal Support Advisory Guidelines (the SSAG).

[10] The child lives with the mother. She has temporary decision-making responsibility for her. The father has temporary parenting time with the child on alternate weekends from Friday at 3 p.m. until Sunday at 5 p.m., and on Wednesdays from 3 p.m. to 6 p.m. He also has virtual parenting time with the child twice each week for 15 minutes.

[11] Both parties testified. They each called three collateral witnesses. The parties cross-examined a clinician (the clinician) from the Office of the Children’s Lawyer (the OCL) who had prepared a report pursuant to section 112 of the Courts of Justice Act. The parties filed business records from the Children’s Aid Society of Toronto (the Society) and Brayden Supervision Services.

[12] The court also reviewed Reasons for Judgment (the Reasons) dated June 10, 2024 from a criminal trial where the father was acquitted of 26 charges relating to alleged assaults against the mother and the child. The mother objected to the admission of these reasons. The court gave oral reasons and admitted them. See: Attorney General of B.C. v. Malik, 2011 SCC 18, 2011 1 S.C.R. 657, pars. 37-48; Children’s Aid Society of Toronto v. I.H., 2017 ONCJ 760, per: Justice Alex Finlayson.

[13] The court found that the Reasons were relevant to whether the father had perpetrated physical violence against the mother and the child. Further, clause 24 (2) (k) of the Children’s Law Reform Act (the Act) sets out that any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child is a best interests factor for the court to consider.

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

a) What parenting orders are in the child’s best interests? In particular:
(i) With which party should the child have her primary residence?
(ii) If the court determines that the child should have her primary residence with the mother, is it in the child’s best interests to relocate with her to Wisconsin?
(iii) What decision-making responsibility orders are in the child’s best interests?
(iv) What parenting time orders are in the child’s best interests?
(v) What incidents of parenting and terms of communication are in the child’s best interests?

b) How much child support should the father pay to the mother on an ongoing basis? In particular,
(i) Will this be a shared parenting arrangement requiring the court to conduct its support analysis pursuant to section 9 of the guidelines?
(ii) If so, what, if any, income should be imputed to the parties for the purpose of the analysis?
(iii) If not, what, if any income should be imputed to the father?

c) If the mother is not permitted to relocate with the child to Wisconsin, how much spousal support should the father pay to the mother and what should be the duration of the support order?

Part Two – Background facts and court history

[15] The mother is 36 years old. She was born and raised in the United States. Her father is Palestinian, and her mother is White American. She is Muslim and follows Islamic religion and customs.

[16] The mother is certified in the United States as a medical technologist and worked in that field in Syracuse, New York from 2013 to 2015. She moved to Canada in 2015 and became a permanent resident in Canada in September 2018.

[17] The mother is not qualified to work as a medical technologist in Canada.

[18] The father is 41 years old. He is of Pakistani heritage. He was born in Saudi Arabia and attended an American school there. He is Muslim and follows Islamic religion and customs.

[19] The father moved with his family to Houston, Texas when he was 9 years old. When he was 15 years old, he moved with his family to the Greater Toronto Area (the GTA). He is a Canadian citizen.

[20] The father was previously married in 2010. He said that his marriage lasted less than a year. He did not have children from that relationship.

[21] In 2011, the father moved to Dubai to work for his father’s company.

[22] The parties married in July 2015 and lived together in Markham, Ontario. The mother traveled each weekend to work in Syracuse until she left her job in November 2015. She was pregnant at that time. The father worked remotely from home at that time for his father’s company.

[23] The parties traveled to Dubai from November 2015 until January 2016. They stayed with the father’s parents (the paternal grandparents).

[24] The parties lived in the paternal grandparents’ home in Richmond Hill, Ontario, when they returned to Canada.

[25] The child was born in Richmond Hill in May 2016.

[26] The father began working for a technology company in Toronto, Ontario in July 2016. The mother stayed at home with the child.

[27] In January 2017, the parties moved into a condominium in Markham.

[28] The father lost his job in January 2018. He went to Dubai to work for his father’s company. The mother and the child went to Ohio, to stay with the mother’s parents (the maternal grandparents).

[29] The father returned to Ontario in April 2018. The mother and the child returned to Ontario that month from Ohio.

[30] In July 2018, the parties and the child moved into a townhouse in Markham.

[31] Since 2018, the father has owned and operated his own company that provides software consulting services.

[32] The mother and child stayed with the maternal grandparents in Ohio from September to November 2018.

[33] In January 2019, the father did not renew the lease for the townhouse in Markham. He said this was due to his financial struggles.

[34] In February 2019, the mother and the child went to stay with the maternal grandparents who had moved to New Mexico.[4] They stayed there until August 2019. The father stayed with the paternal grandparents in Richmond Hill.

[35] In August 2019, the mother went to Ohio with the child. She wanted to work there for a business owned by her father and operated by her uncle. The father traveled from Toronto to Ohio to join the mother and the child.

[36] The father and the child then traveled to Toronto for 10 days in August as the child needed to exit the United States after being there for nearly six months. The mother remained in Ohio.

[37] The mother said she only worked a few hours in Ohio and was not paid. She didn’t view it as a positive job prospect. The parties and the child returned to Toronto at the end of August 2019.

[38] In December 2019, the parties and the child moved to Calgary. The father quickly obtained employment through his corporation. The father said he lost this job in July 2020 due to the pandemic. The parties and the child moved back to Toronto.

[39] The parties and the child traveled to Dubai from January 1, 2021, to February 10, 2021.

[40] The mother and the child spent approximately one month with the maternal grandparents in 2021 for the Eid holidays. The maternal grandparents had moved to Washington State.[5]

[41] In November 2021, while the father was out of the country, the mother took the child to a shelter. The mother also sought the assistance of the society. The father did not know at that time that she had done this. The mother and the child were back home when he returned from his trip.

[42] In March 2022, the mother traveled to Miami for a vacation and the father and the child traveled together for one week to Houston, Texas.

[43] On July 3, 2022, the mother and the child traveled to Washington State to visit the maternal grandparents for the Eid holidays.

[44] On July 19, 2022, the father traveled to Miami, Florida for a business trip.

[45] On July 22, 2022, the mother took the child and moved into a shelter for women who are the victims of family violence. The parties have remained separate and apart since then.

[46] On July 23, 2022, the father was charged with 26 counts of assault against the mother and the child. His criminal release conditions prohibited contact with them.

[47] The mother and the child resided in the shelter until October 2022, when they moved into subsidized housing.

[48] The mother issued her application on December 8, 2022.

[49] The mother started an on-line relationship with M.T. in January 2023. M.T. is a nurse and researcher. He lives and works in the Milwaukee area in Wisconsin.

[50] The father issued his answer/claim on February 27, 2023.

[51] On March 15, 2023, the parties consented to an order that the father pay the mother temporary child support of $824 each month, starting on April 1, 2023. This was based on the father’s annual income of $88,800. The parties also agreed the case should be referred to the OCL. The parties consented that the mother could travel with the child for one week to New Jersey.

[52] Except for putting $200 in her account in July 2022, the father did not pay child support to the mother until the March 15, 2023 order was made. He has made all required child support payments since then.

[53] In April 2023, the mother and M.T. became engaged to be married.

[54] On June 20, 2023, after a contested motion, the mother was granted temporary decision-making responsibility for the child by Justice Debra Paulseth. She ordered the father to pay the mother costs of $3,500. The father has paid these costs.

[55] The father’s criminal release conditions were changed on July 23, 2023, to permit him to have contact with the child pursuant to a family court order.

[56] On September 11, 2023, on consent, Justice Paulseth made a temporary order that the father have supervised parenting time with the child. This was based on minutes of settlement entered into by the parties on August 29, 2023.

[57] The father did not see the child between July 3, 2022, and September 2023 – a period of 14 months.

[58] The father’s parenting time with the child was positive. On November 30, 2023, the parties agreed to a temporary order providing for graduated parenting time for the father and the child. It started with visits on Wednesdays and Fridays from 3 p.m. to 6 p.m. Overnight visits started on February 1, 2024. Starting on February 15, 2024, the parenting time schedule was as follows:

a) Every Wednesday from 3 p.m. until 6 p.m. with a supervised drop off.
b) Alternate weekends from Fridays at 3 p.m., with pick-up from school until Sundays at 5 p.m. with a supervised drop off.

[59] This continues to be the parenting time schedule. The parties have complied with this order.

[60] On March 1, 2024, the parties agreed the father would also have video calls with the child on Mondays and Thursdays for 15 minutes. Four calls were missed by the mother after the order was made.[6] She has complied with the order since then.

[61] The father’s criminal trial started in January 2024.

[62] On June 10, 2024, the father was acquitted of all criminal charges.

Part Three – The parties’ narratives

3.1 The mother’s narrative

[63] The mother feels trapped in Canada. She is in receipt of social assistance and is unable to work in her field as a medical technologist. She is the primary caregiver for the child and is struggling to make ends meet. She has not worked in Canada since she moved here from the United States in 2015. She is relying on assistance from her father and M.T. to survive.

[64] The mother frequently asked the father, prior to their separation, if they could live in the United States. He opposed this.

[65] The mother initially sought permission to relocate with the child to Syracuse, New York. She amended that request to seek a relocation to Wisconsin once she was confident that her relationship with M.T. had solidified.

[66] The mother said she can immediately find work in her field in Wisconsin and earn at least $70,000 US. She expects to be able to earn “in six figures” shortly.

[67] The mother feels that a relocation to Wisconsin is in the child’s best interests as it will provide the child with the financial and emotional security that she needs.

[68] The mother said that M.T. is a supportive partner who spends considerable virtual time with the child. She said the child and M.T. have a warm relationship and he is very good interacting with her. M.T. testified and appeared to be very committed to his relationship with the mother and the child. He is financially secure.

[69] The mother believes she will have a stronger support network in Wisconsin. In Toronto, she and the child are alone. In Wisconsin, she will have the support of M.T. and his family. She said the maternal grandparents plan to move to Wisconsin if she is permitted to relocate there with the child. She said her sister is applying for a medical residency in Milwaukee and a friend is planning to move to Chicago to be nearer to her.[7]

[70] The mother states she is in her current predicament due to the actions of the father and his family.

[71] The mother described being isolated and mistreated during her relationship with the father. She said he controlled almost every aspect of her life. She said she was constantly criticized by him and his family. She felt sad, alone and unsupported. She described how the father was physically, emotionally and financially abusive to her. She said the physical abuse started in 2020. She described the father as an angry and harsh man. She claimed he showed little empathy and support when she had a difficult pregnancy. She said he prioritized his family to her and controlled what she could say to them.

[72] The mother was open about her mental health struggles that she attributed to her relationship with the father. She said she has anxiety and depression and takes medication for it. She is seeing a therapist. She believes she is doing much better with this support. The mother said she saw a psychiatrist and was diagnosed in July 2024 with Post Traumatic Stress Disorder (PTSD).[8]

[73] The mother submitted that the father chose not to pay her child support after they separated to punish her.[9]

[74] The mother says she has always been the child’s primary caregiver. She says she has been able to positively parent the child despite her struggles. She believes the father has overstated his involvement with the child during their relationship.

[75] The mother agreed that the child and the father have a close relationship and that he is a dedicated parent. She agreed that the father’s parenting time with the child has been positive. She expressed no concerns about it. She agreed that the child’s relationship with the father is important and should be fostered. She believes her parenting time proposal accomplishes this.

3.2 The father’s narrative

[76] The father had a much different narrative than the mother.

[77] The father deposed he was an equally involved parent prior to the parties’ separation.

[78] The father stated that the mother struggled with her mental health and at times, he had to take the leading role as a parent.

[79] The father said the mother often isolated herself and stayed in her room.

[80] The father expressed frustration that the mother did not work during their relationship. At times, he was out of work and the family was struggling financially.

[81] The father testified that the mother has been determined for a long time to move with the child to the United States. He believes she made false abuse allegations against him to achieve this goal. He denied all allegations of abuse. He claimed that the mother would sometimes physically hit him.

[82] The father expressed his belief that the mother has obstructed his relationship with the child and fears that the child’s relationship with him and his family will be marginalized, if not eliminated, if the mother is permitted to relocate with the child to Wisconsin.

[83] The father and his collateral witnesses described how the child has a close and loving relationship with the father. His sister and brother-in-law, who now live in Houston, Texas, testified that he was the child’s primary pre-separation caregiver.

[84] The father stated (and it is not disputed) that the child is thriving living in Toronto. He said her friends, supports and community are in Toronto. He described the close paternal family connections the child has in Toronto.

[85] The father criticized the mother’s plan for the child in Wisconsin. He does not view it as stable and feels it has too many question marks. He feels the child would be destabilized if she relocated to Wisconsin.

[86] The father expressed concerns about the mother’s parenting judgment. He deposed that she has neglected the child’s medical needs and that her mental health adversely affects her parenting.

[87] The father believes he can communicate effectively with the mother and jointly parent with her. He points out they have been able to communicate effectively since they both started using the My Family Wizard application for communication in May 2024.

Part Four – Assessment of the parties’ evidence and findings on contested facts

4.1 The mother

[88] The mother readily admitted she has a poor memory of events, particularly the events related to family violence. She said her memory of pre-separation events, especially after 2020, is a blur. She said she has difficulty remembering details of events, such as when and where they took place and specifically what happened during these events. She stated she has snatches of stronger memory. She said she has a better memory of her feelings about these incidents. She attributed her poor memory to her anxiety and PTSD. No medical evidence was provided supporting this is why she has a poor memory.

[89] The Reasons from the criminal trial set out in detail the reliability and credibility issues that the trial judge had with the mother’s evidence.[10] She had a poor recollection of details and gave contradictory evidence at that trial.

[90] The mother also struggled at this trial with providing details of incidents of alleged physical abuse by the father against her and the child. She could not provide dates, locations, or many specifics about these alleged incidents. The court agrees with father’s counsel that this made it very challenging for the father to defend himself against these allegations.

[91] The court also finds that the reliability of the mother’s evidence was adversely impacted by her perceptions of her relationship with the father and her strong desire to move to the United States with the child. For instance, the evidence informed the court that the father was more involved with the child pre-separation than described by the mother. The father, when home, often looked after the child. He took her to medical appointments. He arranged for her home-schooling. He described in detail how much he cared for and engaged with the child.

[92] The evidence also informed the court that the father wanted the mother to work – the mother claimed the father was opposed to this.

[93] The court treated the mother’s evidence with caution due to these reliability issues.

[94] The mother’s evidence about her parenting of the child was much clearer. She was able to describe how she has cared for the child and how she plans to care for the child.

[95] Unlike the criminal trial judge, this court found the mother to generally be a credible witness. She answered questions forthrightly and to the best of her ability. She readily admitted her memory issues, her mental health challenges and that she had spanked the child when the child was younger, even though doing so was not to her advantage.[11]

[96] The court also finds that the mother did not exaggerate or embellish her evidence even where there were opportunities for her to do so. For instance, at one point she appeared to be stating that the father had choked her during one incident. However, she made a point of clarifying this and said the father had not choked her - he had only put his hands close to her neck and had threatened to choke her. She did not need to dial back the severity of this incident but did so to be accurate.

[97] Contrary to the father’s allegations that she was determined to frustrate his relationship with the child, the court found the mother acknowledged and supported the importance of this relationship. She did not hesitate in answering that the child had a close relationship with the father, that the visits were positive, that she had no concerns with the visits, and that it was important for the child to spend a lot of time with the father. She had several opportunities to criticize the father’s post-separation parenting and did not do this. This lent more credibility to her pre-separation evidence about the father and his family.

[98] The mother also quickly consented to increases in the father’s parenting time with the child once his criminal release terms permitted this. She has given him additional parenting time when he has requested it. She did not obstruct the father’s parenting time, as he claimed.

[99] The father alleged the mother manufactured the criminal charges against him to facilitate her ability to relocate with the child to the United States. The evidence did not support this. The mother tried to leave the father before the final separation, and once, when he was on a business trip, she took the child to a shelter for two weeks.

[100] The mother sought the support of the society in her efforts to separate from the father. In the society’s business records, the mother described an abusive relationship. The mother testified she did not fully understand how abusive it was at the time and she understated to the society what was happening in the home. She expressed her fear to the society about the father finding out she was speaking to them. She was reluctant to take the step of leaving him. She worried the father would take the child away from her if she left him. She worried about how she and the child would live without her being able to work.

[101] The mother called the police after the separation because the father was calling her family members. She was initially very reluctant to give a statement to them. She feared the father’s reaction and that she would not be believed. The court finds it was a very difficult decision for the mother to give her statement to the police and she did not make the statement to improve her chances of moving with the child to the United States.

[102] The mother was also very candid about why she has not obtained work outside of her field in Toronto, even though this candour was not necessarily to her advantage when determining whether income should be imputed to her for support purposes. She said she worked through the math with her social assistance worker. If she obtained a part-time job while the child was at school, her rent-geared-to income would rise. Her social assistance and legal assistance would also be compromised. She saw no financial advantage to her going to work part-time.

[103] The court was also able to observe the mother’s demeanour over the five days of trial. She presented as quiet and passive. The trial was a difficult experience for her. What stood out to the court was her anxiety when the father testified. She looked to the side the entire time and did not make any eye contact with him. She was teary during most of his testimony. It was apparent to the court how hard it was for her to be in the same room as him.

4.2 The father

[104] It was also apparent to the court that the father has been through a considerable ordeal. He has been living with the emotional and financial stress of criminal and family litigation. He is still grieving the time he lost with the child. He fears losing her again if she is permitted to relocate to Wisconsin. The court was left with no doubt that he loves the child and is a caring father with many parenting strengths. The court credits him for conducting himself in a quiet and respectful manner during the trial, given these difficult circumstances.

[105] The father had a better memory of events than the mother. However, the court had some difficulties with the reliability of his evidence. He had more memory problems when he was being asked questions that potentially could cast him in a less favourable light. When this happened, he tended to be more evasive and answer questions tangentially. For instance, when asked why two of his collateral witnesses testified that he was the child’s primary pre-separation caregiver, when even he said this was not the case, he claimed he did not remember their testimony, even though they had just testified the day before.

[106] The court also finds that the father’s perception of events was affected by his mistrust of the mother and his anger towards her. He interpreted events and the mother’s motives through this prism. He believes that she is on a campaign to eliminate him from the child’s life. He claimed he was not currently angry at her. However, he told the clinician he was angry at her. His anger with the mother, due to what he feels she has wrongly put him through, was apparent to the court during the trial.

[107] The father was begrudging about saying anything positive about the mother. He had nothing positive to say about her in his very lengthy trial affidavit. He was begrudging about admitting anything positive about her in cross-examination. He frequently had a “but” attached to any evidence he felt might put the mother in a positive light. When asked if the child has a close relationship with the mother, he answered, “she is her mother”.

[108] The father described serious pre-separation parenting concerns about the mother. None of these concerns were supported by the evidence. Despite these concerns, the father agreed to the mother spending lengthy times caring for the child without him. The father tried to justify this decision by saying the maternal grandparents were keeping an eye on her. This was unlikely. The court finds he exaggerated his concerns about the mother.

[109] The father was also overly critical about the mother’s parenting post-separation. He claimed she has neglected the child’s medical needs. This was not supported by the independent evidence filed from the clinician, the collateral sources she interviewed, and the society’s business records. The court finds the father exaggerated these concerns. The evidence established that the mother is an excellent parent and is taking good care of the child.

[110] The father criticized the mother for removing the child after the separation from her Islamic school and for sending her to a public school. This was unfair. The mother and the child were residing in a shelter in Toronto and living on a stipend from the shelter of $70 each week. The father had chosen to pay her no child support. She could not afford to take the child daily to the school in Mississauga.[12]

[111] The father also unfairly criticized the mother for not getting insoles from the child’s podiatrist after the separation. However, the mother could not afford them and the father was not paying child support. The mother eventually paid for the insoles herself and followed the podiatrist’s recommendations.

[112] The father blamed the mother for preventing him from seeing the child for 14 months. However, she did not lay the criminal charges, the police did. The mother was very reluctant to give a statement to the police. The police and Crown determined his release conditions. Further, it was the mother who brought the parenting issues to court. The father could have brought the matter to court earlier.

[113] The father was very focused on his rights as a parent and rigid on obtaining a 50% child-sharing arrangement. He was more defensive and tangential in answering questions that did not support that narrative.

[114] The father was not as credible a witness as the mother.

[115] The father’s credibility was seriously impaired by his conduct on the financial issues. When the mother separated from him in July 2022, he put $200 into her account a few days later. He paid her no further child support until ordered to do so by the court on March 15, 2023. His excuse was that there was a criminal no-contact order. This was a very poor excuse. The father had many ways he could have paid child support. For instance, he said he was often in contact with the maternal grandfather. He could have sent the child support to him. He could have also paid the mother support for the period from August 1, 2022 to March 31, 2023, once the court case started. Instead, he disputed paying her any support for this period until closing submissions.

[116] The mother was in financial distress during this time. She was living in a shelter with the child and trying to live on a meagre weekly allowance.

[117] The court finds that the father was angry about the separation and the criminal charges and chose to financially punish the mother. This conduct supported the mother’s narrative that the father was controlling and prepared to be abusive to her if she did not do what he wanted.

[118] The father’s financial misconduct continued throughout the litigation. The imputation of his income remained a live issue during this trial. He was self-employed during most of this case and was required to provide meaningful financial disclosure. He was obstructive about providing it. He admitted he ignored the mother’s Request for Information. He did not produce his complete personal and corporate income tax returns, his personal and business bank account and credit account records, proof of business expenses or Records of Employment when his work was terminated. This was basic financial disclosure that should have promptly been provided to the mother.

[119] The father blamed his legal representatives for much of his failure to comply with his financial obligations. He had four lawyers on this case. He claimed he followed legal advice.[13] He also offered excuses of being preoccupied with his criminal trial and his short transition of being self-represented. These weak excuses further undermined his credibility. He knew what his financial obligations were and chose to be obstructive, secretive and evasive. This was a poor decision. It supported the mother’s narrative that he is a controlling and difficult person.

[120] The evidence informed the court that the father has used the child’s Canada Child Benefit as a means of financial control. The mother never received this benefit. The father received it. The father claims he did not receive it after 2018 because he failed to file his income tax returns. He said he did not file income tax returns for several years until 2023.[14] However, his notices of assessment indicate they were processed in October 2022. The mother pointed out the father should have received a lump sum for the child’s past Canada Child Benefits, once his late-filed returns were processed. The father could not remember receiving a lump sum for these benefits, but this could not be verified because he filed none of the relevant financial disclosure that would have shown if he had received it. What is clear is that the father took no steps to ensure that the mother received these benefits.

[121] The father’s credibility was impaired by other conduct during the trial. The mother sought permission to travel in 2024. The father did not respond to the travel request for two months. He claimed he was otherwise preoccupied with the criminal case. The court finds he was choosing to be difficult and controlling.

[122] The mother has frequently asked the father to consent to the child obtaining United States citizenship. The father was cross-examined about this issue. He was evasive and his answers were contradictory. He claimed he did not oppose the child obtaining United States citizenship but questioned why it was a priority at this time. It was evident to the court that he did not support the child obtaining United States citizenship as he feared the mother would use this to reduce his relationship with the child.

[123] The court found the father overstated his pre-separation involvement with the child. He claimed to be equally involved in caring for the child. This was not the case. The mother was a stay-at-home parent and the father worked long hours and supported the family. He often traveled for business. The mother and the child spent long periods away from him. The father gave muddied answers about how he looked after the child while working remotely. It was apparent he worked long hours for his father’s company and for Uber Eats and could not have been spending as much time with the child as he claimed.

[124] The court also finds the father minimized the mother’s role in caring for the child in his evidence. She was the child’s primary caregiver. His evidence about her role in caring for the child was not credible.

[125] The mother’s evidence that the father was hyper-critical of her and lacked sensitivity and empathy was supported by the father’s evidence and his presentation at trial. For instance:

a) The father was very critical of the mother’s parenting in his affidavit, often being hyperbolic. He claimed she neglected the child’s medical needs. He believed her mental health issues raise questions about her ability to foster healthy relationships for the child. These criticisms were not supported by the evidence.
b) The father demonstrated little sensitivity to the difficulty the mother faced commuting to work in Syracuse while she was pregnant.
c) The father demonstrated little sensitivity to the difficult childbirth the mother had. He showed no understanding of how emotionally difficult it was for her. Instead, he criticized her parenting at that time.
d) The father dismissed the mother’s concerns that his family was very critical of her and that she felt alone and unsupported.
e) The father dismissed the mother’s challenges in working in Canada. She was willing to work if they could find daycare for the child. However, the father refused to put the child in daycare. He said it was too expensive, even though the paternal grandfather offered to pay for it.

[126] The court generally preferred the mother’s evidence over the father’s evidence where it conflicted.

4.3 Family violence

4.3.1 Legal considerations

[127] Subsections 18 (1) and (2) of the Act define 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”)

(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.

[128] 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).
3. Domestic violence allegations are notoriously difficult to prove. Family violence often takes place behind closed doors and may lack corroborating evidence. Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support (par. 145).

[129] 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.

[130] Family violence can be insidious. It can take many forms, and frequently involves coercive and controlling behaviors which are usually very difficult to prove because they often take place in private. Abusers, especially those of the coercive and controlling kind, are often skilled manipulators; they can be charming, they can be convincing liars, and they can be very persuasive. Victims of family violence are often the only witnesses who can attest to their abuser’s behavior and unfortunately, they are sometimes not believed because of their inability to support their allegations with objective third party evidence. See: Volgemut v. Decristoforo, 2021 ONSC 7382.

[131] Failure to speak out earlier and inconsistent evidence is common for victims of domestic violence. See: A.E. v. A.B., 2021 ONSC 7302; N.M. v. S.M., 2022 ONCJ 482.

[132] The court is also very aware that family violence is sometimes difficult for the victim to prove. It is often not reported. There may be many reasons for this. There will often be no medical, police or Children’s Aid Society reports to corroborate allegations of family violence. Victims sometimes minimize and rationalize the abuse. The family violence can take place in private so that there are no witnesses. Control and coercion can be subtle and only evident to the victim. See: Wiafe v. Aboakwa-Yeboah, 2021 ONCJ 201.

[133] Denigrating your spouse in front of the children fits within the definition of family violence. See: Ammar v. Smith, 2021 ONSC 3204; McIntosh v Baker, 2022 ONSC 4235.

[134] Violence need not be physical. Emotional and psychological abuse can have a devastating impact on a child. See: Dayboll v. Binag, 2022 ONSC 6510; El Khatib v. Noun, 2023 ONSC 1667.

[135] Financially controlling your spouse by deliberately making inadequate support payments can constitute family violence. See: N.M. v. S.M., 2022 ONCJ 482; F.S. v. M.B.T., 2023 ONCJ 102.

4.3.2 Findings of family violence in this case

[136] The court is not finding that the father physically abused the mother and the child during their relationship due to the poor reliability of the mother’s evidence on this issue.

[137] However, the court is also not ruling out that some physical abuse by the father took place. Civil courts do not apply the criminal standard of proof of “beyond a reasonable doubt”.

[138] The court is not finding that the allegations of physical abuse were false. The father was not a credible witness. The child told the clinician on May 24, 2024, that the father used to hit her and the mother a lot and he used to break doors and punch things when he was angry. She said this made her mother cry a lot. The mother presented as fearful of the father at the trial. She was able to describe some incidents of physical abuse with more clarity, such as the father placing his hands near her neck, shoving a toothbrush in her mouth and shoving food in her mouth.

[139] The court finds that other forms of family violence did occur during the relationship. The court accepts the mother’s evidence that the father was often harsh, hyper-critical and insensitive towards her during their relationship. The court accepts her evidence that he controlled what she could say to the paternal grandparents. It accepts her evidence that he was frequently angry with her and punched doors and walls. This all constituted psychological abuse. The court accepts that much of this psychological abuse took place in front of the child.

[140] The court finds the father was financially abusive and controlling towards the mother both during and after their separation. The court accepts the mother’s evidence that the father entirely controlled their funds and she had to ask him to put money in their joint account for her to buy anything for her and the child.[15] The father controlled the Canada Child Benefit. The court finds that the father continued to exert this financial control over the mother post-separation by not supporting her and the child, not facilitating her receipt of the Canada Child Benefit and being obstructive in providing financial disclosure.

[141] The court finds there was and continues to be a distinct power imbalance between the mother and the father.

[142] The court finds there was a pattern of coercive and controlling behaviour by the father that caused the mother to fear for her safety. The child was exposed to much of this behaviour. The court accepts that the mother is afraid of the father and has legitimate reasons for being fearful of engaging with him without any monitoring of their interaction.

[143] The court does not accept the father’s evidence that the mother perpetrated family violence against him.

Part Five – Primary residence of the child

5.1 Legal considerations

[144] 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 a child’s best interests.

[145] 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 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.

[146] 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.

[147] 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.

[148] The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. See: Gordon v. Goertz. Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child. See: Young v. Young; E.M.B. v. M.F.B., 2021 ONSC 4264; Dayboll v. Binag, 2022 ONSC 6510.

[149] 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. Also see: Armstrong v. Coupland, 2023 ONSC 5451; 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.

[150] In Barendregt v. Grebliunis, supra, the Supreme Court of Canada wrote the following about the maximum time principle at paragraphs 134 and 135:

[134] Although Gordon placed emphasis on the “maximum contact principle”, it was clear that the best interests of the child are the sole consideration in relocation cases, and “if other factors show that it would not be in the child’s best interests, the court can and should restrict contact”: Gordon, at para. 24; see also para. 49. But in the years since Gordon, some courts have interpreted what is known as the “maximum contact principle” as effectively creating a presumption in favour of shared parenting arrangements, equal parenting time, or regular access: Folahan v. Folahan, 2013 ONSC 2966, at para. 14; Slade v. Slade, 2002 YKSC 40, at para. 10; see also F. Kelly, “Enforcing a Parent/Child Relationship At All Cost? Supervised Access Orders in the Canadian Courts” (2011), 49 Osgoode Hall L.J. 277, at pp. 278 and 296-98. Indeed, the term “maximum contact principle” seems to imply that as much contact with both parents as possible will necessarily be in the best interests of the child.

[135] These interpretations overreach. It is worth repeating that what is known as the maximum contact principle is only significant to the extent that it is in the child’s best interests; it must not be used to detract from this inquiry. It is notable that the amended Divorce Act recasts the “maximum contact principle” as “[p]arenting time consistent with best interests of child”: s. 16(6). This shift in language is more neutral and affirms the child-centric nature of the inquiry. Indeed, going forward, the “maximum contact principle” is better referred to as the “parenting time factor”.

[151] 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.

[152] 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 or shared parenting 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.

5.2 Analysis

[153] The mother seeks an order that the child have her primary residence with her.

[154] The father seeks an equal time parenting arrangement. He claims this is what the child wants.

[155] Both parties love the child and want what is best for her. The clinician testified that both parties are important to the child and bring a different dynamic to the child’s life.

[156] The father, understandably, wants to be much more involved in the child’s life. He expressed he feels he has unfairly missed out on parenting her since the parties separated.

[157] The court finds that the child should have her primary residence with the mother for the following reasons:

a) She has always been the child’s primary caregiver.
b) There have been long gaps of time, both before and after separation, where the father did not parent the child. The father only started overnight parenting time with the child on February 1, 2024.
c) The child has thrived in the mother’s primary care. It is agreed that she is a wonderful child. She is bright, happy, healthy and very social. She is doing very well in school. The clinician described the child as empathetic, sensitive and intelligent. While both parties deserve credit for the child’s positive development, the mother, deserves significant credit, given the trauma, mental health challenges and financial instability she has gone through.[16]
d) The mother has responsibly met the child’s physical, emotional and developmental needs.
e) The mother is the parent more supportive of the other parent. The father and his family are very critical of the mother.
f) The child loves both parties. Her closest relationship is with the mother. The child told the clinician on May 24, 2024 that she feels safer at her mother’s home.[17]
g) The level of conflict between the parties has been very high. The mother is fearful of the father.
h) There is too high a level of mistrust between the parties to make an equal parenting time plan effective. There has been some improvement in co-operation between them since they started using My Family Wizard in May 2024, but this is a monitored interaction and very recent.
i) The father has committed family violence, as defined in the Act, against the mother. There remains a power imbalance between them.
j) The father put his own interests over the child’s interests with his financial conduct in this case.
k) The child having her primary residence with the mother best meets the child’s physical, emotional and psychological safety, security and well-being.

Part Six – Relocation

6.1 Legal considerations

[158] The Act provides a comprehensive framework that governs relocation matters. The sections of the Act that address relocation are 39.3 and 39.4.

[159] In determining whether to authorize the relocation of a child, the court is required to consider the best interests of the child in accordance with section 24 of the Act, as well as the factors at subsection 39.4 (3) of the Act, which are as follows:

(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons;
(d) whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement;
(e) the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and
(g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance.

[160] In Barendregt v. Grebliunis, 2022 SCC 22, the court interpreted these relocation provisions as follows:

1. The parent who cares for the child on a daily basis is in a unique position to assess what is in their best interests: Gordon, at para. 48. This logic applies to both parents in a shared parenting arrangement, and accordingly, both of their views are entitled to great respect in an assessment of the child’s best interests. This makes sense: a court always pays careful attention to the views of the parents. In my view, it adds little value to this analysis to label it a separate principle of “great respect”. See: paragraph 119.

2. The court should avoid casting judgment on a parent’s reasons for moving. A moving parent need not prove the move is justified. And a lack of a compelling reason for the move, in and of itself, should not count against a parent, unless it reflects adversely on a parent’s ability to meet the needs of the child. Ultimately, the moving parent’s reasons for relocating must not deflect from the focus of relocation applications — they must be considered only to the extent they are relevant to the best interests of the child. See: paragraphs 129-130.

3. Avoiding family violence or acrimony can be an important best interests factor in determining relocation. See: paragraph 147.

4. The court shall consider all factors related to the circumstances of the child, which may include the child's views and preferences, the history of caregiving, any incidents of family violence, or a child's cultural, linguistic, religious and spiritual upbringing and heritage. A court shall also consider each parent's willingness to support the development and maintenance of the child's relationship with the other parent, and 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. These examples are illustrative, not exhaustive. See: paragraph 153.

5. At paragraph 154 the court writes:

[154] However, traditional considerations bearing on the best interests of the child must be considered in the context of the unique challenges posed by relocation cases. In addition to the factors that a court will generally consider when determining the best interest of the child and any applicable notice requirements, a court should also consider:
• the reasons for the relocation;
• the impact of the relocation on the child;
• the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child's life of each of those persons;
• the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
• the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
• whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, agreement, and the likelihood of future compliance. The court should not consider how the outcome of an application would affect either party's relocation plans - for example, whether the person who intends to move with the child would relocation without the child or not relocate…"

6. The mother’s need for emotional support was an important factor. Courts have frequently recognized that a child’s best interests are furthered by a well-functioning and happy parent. See: paragraph 169.

7. Relocation that provides a parent with more education, employment opportunities, and economic stability can contribute to a child’s wellbeing. These considerations all have direct or indirect bearing on the best‑interests‑of‑the‑child assessment. See: paragraph 171.

8. The additional support of family and community at the new location can enhance the parent’s ability to care for the children. See: paragraph 172.

9. It is often difficult to disentangle the interests of a parent from the interests of a child. Indeed, “the reality that the nurture of children is inextricably intertwined with the well-being of the nurturing parent” is far from novel. A child’s welfare is often advanced in tandem with improvements in the parent’s financial, social, and emotional circumstances. The trial judge found this to be the case here. See: paragraph 173.

[161] In Moreton v. Inthavixay, 2021 ONCA 501, the Ontario Court of Appeal said that the trial judge did not err in considering the respondent’s enhanced ability to better meet the needs of the children by having more disposable income and time, a larger house in which each child has her own room and shares a bathroom, and an elementary school within five minutes’ walking distance of the house. The improved ability to satisfy the children’s needs, including financial viability, is a valid and compelling parenting-based reason for the move of a primary caregiver. See: Porter v. Bryan, 2017 ONCA 677.

[162] Courts have recognized that modern day technology has made it easier to overcome the distance problem regarding parenting time in permitting a parent to move away with a child and facilitate contact with the other parent. See: Hussein v. Dirie, 2018 ONCJ 781, per: Justice Roselyn Zisman; Ryall v. Ryall, 2009 ONCJ 687, per: Justice Carole Curtis; Lepine-Maynard v. Majstorovic, 2022 ONSC 656, per: Justice Kiran Sah; M.K. v. J.K., 2020 ONCJ 387, per Justice Stephen Paull.

6.2 Analysis

[163] The parties agreed they both bear the onus of establishing whether the proposed relocation is or is not in the child’s best interests, pursuant to subsection 39.4 (7) of the Act.

[164] The following are factors against permitting the relocation of the child with the mother to Wisconsin:

a) The child is thriving in Toronto. There is always some risk of destabilizing her if she is removed from Toronto.
b) The child loves and has a close relationship with the father. She expressed to the clinician she feels safe with and loved and protected by him. The child told the clinician she wants to spend more time with him. This relationship was disrupted for a long time. This relationship may be adversely affected if she is permitted to relocate with the mother to Wisconsin.
c) The child has many paternal connections in Toronto. She has a close relationship with them.
d) The child will leave behind friends if she relocates with the mother to Wisconsin.
e) There are some uncertainties for the child if the mother relocates with her to Wisconsin. Will the mother be able to find a job right away as she claims? Will the maternal grandparents and her sister move to Wisconsin, as she hopes?[18]
In making this decision, the court is not relying on the maternal grandparents, the mother’s sister or the mother’s friend moving to Wisconsin.
There are other uncertainties about the proposed move. What will happen to the mother’s therapeutic supports? Will her relationship with M.T. succeed?[19] And, if it doesn’t, will she want to relocate again?

[165] The court finds these concerns are outweighed by the following factors supporting an order permitting the child to relocate with the mother to Wisconsin:

a) The child is living in poverty with the mother in Toronto. They are on social assistance. At times, they have used food banks. They are reliant on support from M.T. and the maternal grandfather. By contrast, the father claims he has expenses of over $122,000 annually, inclusive of his legal fees.[20] There is a significant financial imbalance in the two households. Permitting the mother to relocate to Wisconsin with the child will give her the opportunity to provide the child with financial security and better meet all her needs.
b) The mother is not qualified to work in her field in Canada. It would take her one to three years to qualify in her field and she does not have the external support to take this step. She does not have childcare for the child. She does not have friends or family in Toronto to help her. She is on social assistance and does not have funds to pay for the required courses to become qualified as a medical technologist in Canada. The father has not paid her any spousal support and opposed her claim for spousal support until closing submissions. The mother will better be able to become financially independent if she relocates with the child to Wisconsin. This financial stability is in the child’s best interests.
c) The mother has been trapped financially, emotionally and legally in Canada for many years. She has been the victim of family violence. Her mental health has suffered. She has persevered and done an excellent job being the child’s primary caregiver. She is from the United States and has been clear for many years that she wants to live there. She will be a better functioning parent for the child if she is permitted to move to the United States.
d) The mother appears to have a loving, healthy and supportive relationship with M.T. He is financially secure and has family support in the area. The mother would not be as isolated in Wisconsin as she is in Toronto. That should make her a better functioning parent and improve her mental health.
The evidence informed the court that although M.T. and the child have only met once in person they have a comfortable relationship. They often play and talk together on video calls.
The father criticized how rapidly the mother and M.T. became engaged. However, the mother pointed out that this is culturally normal and that her engagement with the father was even quicker. The court does not see this as a significant factor.
e) The mother has legitimate reasons for wanting to relocate with the child to Wisconsin.
f) The child expressed to the clinician that she is OK with moving to the United States with the mother. She wants to still see her father “a lot”.
g) The mother has given considerable thought to her relocation plan. She and M.T. have identified an Islamic school for the child to attend and a building where they wish to live in Wisconsin.
h) The mother proposed a very extensive parenting time plan for the father. She proposed that he have six weeks with the child each summer, the two-week winter break, and the March school break with the child, and other holiday time. She also proposed that the father could come to Wisconsin to see the child for up to two weekends each month and have frequent video time with the child.
The court recognizes the proposed parenting time does not permit the father the same frequency of parenting time he would have if the child was in Toronto. It makes it more difficult for him to engage with the child’s education and extra-curricular activities. However, it will provide him with more extensive time with the child and is an increase in the overnights he presently has each year with the child.
The court finds this is a very reasonable plan and it will ensure the continuity of the child’s close relationship with the father.
This plan will also provide the paternal family considerable time to spend with the child. The child’s relationship with them should not be compromised by her relocation.
The mother’s proposal for the father’s parenting time is more extensive than the parenting time he proposed for her if she relocated to Wisconsin without the child.
i) The mother and M.T. both support the child going to Islamic school in Wisconsin. The father also supports the child attending Islamic school. The child goes to public school in Toronto. She would be going to a new Islamic school next fall, with new teachers and new friends, whether or not she is permitted to relocate.
j) The mother recognizes the importance of the child’s school stability not being disrupted. She does not plan to relocate to Wisconsin with the child until the completion of the child’s school year. This will also give her time to arrange accommodations, the child’s school registration, employment, and new therapeutic supports.
k) The child is happy and well-adjusted. She has shown resilience by functioning so well despite her parents’ high-conflict relationship. She has adjusted well despite spending extended time in many different places, such as Calgary, Ohio and New Mexico. This informs the court she is more likely to adapt to the relocation than most children.
l) The mother gave the father appropriate notice of her desire to relocate with the child to Wisconsin.
m) The mother has complied with court orders. She has given the father additional parenting time when he has requested it. She has waited for the court’s permission to relocate before implementing her plan in Wisconsin. The court finds she will follow court orders and facilitate the father’s relationship with the child.
n) The father has the financial means to travel frequently to Wisconsin. The father’s family, who is very supportive of him, also has considerable means to assist him.
The father expressed concern about his ability to enter the United States due to his criminal charges. However, he provided no documentation verifying this is an actual concern. He has been acquitted of all charges and does not have a criminal record.
If the father does have a short-term problem entering the United States, the order will permit him to designate a third person, known to the mother, to transport the child on visits.
o) The father is an experienced and frequent traveler. He has often traveled internationally for work. He emphasized to the court how flexible his work schedule is. It will be easier for him than most parents to organize his life to spend significant time in Wisconsin with the child.

[166] The court finds it is in the child’s best interests to permit the mother to relocate with the child to Wisconsin at the end of her present school year.

Part Seven – Decision-making responsibility

7.1 Legal considerations

[167] The court has considered the best interest factors set out in Part 5.1 above in determining the issue of decision-making responsibility.

[168] 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.

[169] 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.

[170] The Ontario Court of Appeal has upheld a joint decision-making responsibility order in the absence of reasonably effective communication between the parents where it has been necessary to sustain a child’s contact with a parent who has been subjected to a campaign of alienation. For example, such an order was upheld where a mother had laid down a pattern of resisting the father’s access and was found by the trial court to be unable to appreciate the importance of the father’s relationship with their children. See: Andrade v. Kennelly, 2007 ONCA 898.

[171] 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.

[172] In paragraph 504 of Izyuk v. Bilousov, 2011 ONSC 6451, 2011 CarswellOnt 12097 (SCJ), the court writes:

In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children- particularly children already exposed to the upset of family breakdown- look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

[173] 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; or
b) more or less likely to expose the child to parental conflict.

[174] In S.S., this court further stated that courts should also examine 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.

[175] In cases of family violence, particularly spousal violence, it is crucial that the court consider whether a co-operative parenting arrangement is appropriate. A victim of family violence might be unable to co-parent due to the trauma they have experienced or ongoing fear of the perpetrator. In addition, co-operative arrangements may lead to opportunities for further family violence. See: Bell v. Reinhardt, 2021 ONSC 3353.

[176] Section 28 of the Act sets out the types of parenting orders the court can make. Clause 28 (1) (c) of the Act reads as follows:

(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.

7.2 Analysis

[177] The mother seeks an order for sole decision-making responsibility for the child. She also seeks orders that she can obtain or renew government documentation for the child and travel internationally with the child without the father’s consent.

[178] The father seeks an order for joint decision-making responsibility for the child. He points to the recent improved communication between the parties. He submits that the parties agreed on most major decisions about the child. He also submits that such an order is necessary to ensure the mother does not marginalize him from the child’s life. He opposes the mother’s requests to dispense with his consent regarding the child’s documentation and international travel.

[179] The court finds that a joint decision-making responsibility order is not in the child’s best interests. It is not viable given the high conflict and mistrust between the parties. It is important that important decisions regarding the child not be paralyzed due to this conflict. It is in the child’s best interests to order that the mother have sole decision-making responsibility for the child.

[180] The court repeats its findings set out in paragraph 157 above in support of this decision.

[181] The court is concerned that the father would use joint decision-making authority or the requirement of his consent to inappropriately exert control over the mother, as he has done in the past.

[182] The court disagrees with the father that the parties were able to jointly make decisions together. The mother wanted to put the child in daycare so she could work. The father refused. He got his way. The father wanted to put the child in a private Islamic school of his choice. The mother disagreed. The father got his way. The mother wanted to relocate the family to the United States. They didn’t move to the United States. The mother wanted to obtain United States citizenship for the child. The father disagreed and it has not happened.

[183] The father does not trust the mother. He wants her to share information but does not do so himself. He moved his residence in August 2024 and did not inform the mother. She learned he had moved from the child. Her counsel sought his new address. There was no response. The mother finally learned the father’s new address when he put it on a court document. He also did not share his financial information in a meaningful way with the mother during this case.

[184] The court trusts the mother’s judgment over the father’s judgment. The mother has always prioritized the child’s interests. The father has let his anger at the mother interfere with prioritizing the child’s interests over his own. His failure to pay child support after separation was indicative of this.

[185] The evidence does not support the court granting the father’s alternative request of parallel decision-making responsibility while the child is in Wisconsin. The conflict and distrust between the parties is too high.

[186] The mother will be granted sole decision-making responsibility for the child, save as set out below. The court will require her to consult with the father before making any major decision regarding the child.

[187] The court will be ordering large blocks of parenting time for the father. This creates an opportunity for the father to have some involvement in decision-making responsibility for the child. The court will order that he have decision-making responsibility over the child’s health and extra-curricular activities when the child travels to Canada. He can and should arrange for a doctor for her. This authority does not extend to having the child attend counseling or therapy in Canada. To be clear, the mother will have sole decision-making responsibility over all issues regarding the child until the child relocates with her to Wisconsin. In closing submissions, the mother said she supported the court making this order.

[188] The court will dispense with the father’s consent for the mother to obtain or renew Canadian or American documentation for the child and for her to travel internationally with her. The father has obstructed a past travel request by the mother and has not responded in a timely or co-operative manner to her requests for a religious divorce, to obtain United States citizenship for the child or for basic financial disclosure. The court has no confidence he will cooperate in consistently providing his consent in a timely manner. This is not in the child’s best interests.

[189] The mother proposed that the father be able to travel outside of Canada with the child with her written consent, such consent not to be unreasonably withheld. The father seeks no travel restrictions.

[190] The mother fears that the father may attempt to travel to a country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention) and withhold the child.

[191] There is merit to the mother’s fears. The evidence informs the court the father has a controlling personality. He is angered by his loss of control of this situation and his perception that the mother is trying to marginalize his role in the child’s life. There is a risk he will attempt to take back control and place the child out of the mother’s reach. The father has ties to Dubai and Pakistan. Many of his family members live in Dubai. If the father withheld the child in a country that is not a signatory to the Hague Convention, it would be very challenging for the mother to have the child returned to her care. The order will provide that the father may not take the child to a country that is not a signatory to the Hague Convention without the notarized written consent of the mother.

[192] It is important to protect the child from adult conflict. The court will order several of the communication and contact terms proposed by the parties in their draft orders.

Part Eight – Parenting time

[193] In determining the father’s parenting time, the court must consider the relevant best interests considerations set out in Part 5.1 above.

[194] In particular, subsection 24 (6) of the Act states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

[195] Where distances are longer between the parents’ homes, the court may order less frequent, but longer parenting time. See: Trudel v. Ward, 2019 ONSC 5047.

[196] The mother proposed a comprehensive parenting time plan for the father once the relocation to Wisconsin takes place. She proposed more parenting time than recommended by the clinician in her report.

[197] The father did not propose a parenting plan if the court permitted the mother to relocate with the child to Wisconsin.

[198] The court finds the mother’s proposed parenting time plan, with some changes, is in the child’s best interests. It meets the objectives set out in the legislation and jurisprudence and is consistent with the court’s findings in this decision.

[199] The mother proposed that the father have long blocks of parenting time with the child. This included six weeks in the summer, the winter and spring school breaks, Easter weekend and Canadian Thanksgiving weekend. She proposed to take the child to the father, at her own expense, at the start of the visits. She asked that the father travel to Wisconsin with the child, at his expense, to return the child at the end of the visit. The court finds this is a reasonable proposal, especially since the mother is not seeking any spousal support. It will be ordered.

[200] The mother also proposed that the father may exercise weekend parenting time in Wisconsin on two weekends each month, with two weeks notice to her. This will be ordered.

[201] If the father faces any obstacles entering the United States, he may designate someone known to the mother, with reasonable notice to her, to transport the child.

[202] The parties are to execute whatever documentation is required to facilitate the transfer of the child between them on visits.

[203] Pending the child’s relocation to Wisconsin, the mother proposed extending the father’s alternate weekend visits to a return to school on Monday mornings. However, the evidence supports making an order for a more significant increase in parenting time. The father’s overnight time with the child has been a success. The child enjoys her time with him and the paternal family and wants to spend more time with him. The father is responsibly meeting the child’s needs during his visits. The clinician observed a close bond between the father and the child. She observed that the father is attentive and kind to the child. Increased parenting time is consistent with subsection 24 (6) of the Act and the jurisprudence.

[204] The father’s parenting time will now increase to two out of every three weekends, with the present Sunday drop off extended to a drop off at school on Monday mornings. The child shall also spend this March school break exclusively with the father. The court will make exchange orders to ensure they take place in a safe manner.

[205] The court also finds it is in the child’s best interests to increase the frequency and length of the father’s virtual parenting time with the child. It will be increased to three days each week, for up to 30 minutes.

[206] The parenting time terms will be set out in more detail in the order.

Part Nine – Child support

9.1 Positions of the parties

[207] The parties agreed in closing submissions that the father should pay child support to the mother of $824 each month, starting on August 1, 2022. This is the guidelines table amount for one child, based on an imputed annual income to the father of $88,800.[21]

[208] The father started paying the mother child support of $824 each month on April 1, 2023.

[209] This order will create immediate child support arrears of $6,592 (8 months at $824 each month).

[210] The child will be primarily living with the mother. Section 9 of the guidelines will not apply to ongoing child support.

[211] The mother asks that the father continue to pay child support of $824 each month. The father asks that child support be based on his projected annual income of $60,000, not on the $88,800 income that has been used for his support payments to date. The guidelines table amount for one child at this income is $556 each month.

9.2 The evidence

[212] The father is the sole owner and operator of a corporation that does software consultation.

[213] The father deposed that his income varies yearly, depending on whether he can obtain contracts. He provided his personal notices of assessment for 2021 to 2023. They set out that his income was $40,000 in 2021, $88,800 in 2022, and $58,000 in 2023. The father determines the amounts his corporation pays him each year.

[214] The father said he did not work in 2024 until he obtained a probationary job that would have paid him $90,000 annually.[22] He only worked two months at that job. One month later, he obtained another contract through his corporation. He said it is part-time work. He said he is invoicing his client $3,500 bi-weekly for this contract. He billed less in December 2024 because of the winter holidays.

[215] The father said his ability to earn income has been impaired because of the criminal charges. He said that prospective employers and clients did not want to hire him because of them. He also said the criminal charges prevented him from entering the United States and may do so until his records are expunged.

9.3 Legal considerations

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

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

a) Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli, [2002] O.J. No. 3731(Ont. C.A.).

b) The Ontario Court of Appeal in Drygala v. Pauli set out the following three questions which should be answered by a court in considering a request to impute income:

(i) Is the party intentionally under-employed or unemployed?
(ii) If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs, the needs of the child or reasonable health needs?
(iii) If not, what income is appropriately imputed?

c) The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.). However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.

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

e) A self-employed person has the onus of clearly demonstrating the basis of his or her net income. This includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes. See Whelan v. O’Connor, [2006] O.J. No. 1660, (Ont. Fam. Ct.). This principle also applies where the person’s employment income is derived from a corporation that he or she fully controls. See: MacKenzie v. Flynn, 2010 ONCJ 184; Yocheva v. Hristov, 2019 ONSC 1007; Poulin v. Poulin, 2017 ONSC 64.

f) Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them. See: Szitas v. Szitas, 2012 ONSC 1548; Woofenden v. Woofenden, 2018 ONSC 4583.

g) The court can also impute income where the evidence respecting income is not credible for any other reason. See: Heard v. Heard, 2014 ONCA 196, at paras. 33-35; Gostevskikh v. Gostevskikh, 2018 BCSC 1441; M.A.B. v. M.G.C., 2022 ONSC 7207.

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

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

j) 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.

k) 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.

9.4 Analysis

[218] The court will impute annual income of $88,800 to the father on an ongoing basis for support purposes for the following reasons:

a) He chose to limit his employment leading up to this trial. He said he was focused on the criminal and family law litigation. He was let go from his probationary job and did not provide an explanation for his dismissal or a Record of Employment. At this point, he is only working part-time. The court finds he is deliberately under-employed without a valid excuse.
b) He testified he is capable of earning $90,000 annually.
c) He paid child support based on this level of income up until trial.
d) It appears he will gross annual income of about $91,000 from his part-time contract.[23] This does not account for expenses. However, his expenses for this type of business should be minimal. He also has the ability to earn more income since he is only working part-time.
e) An adverse inference is drawn against him for his failure to provide meaningful financial disclosure. He failed to provide complete personal or corporate tax returns. He provided no evidence of his expenses. He gave the mother and the court no ability to assess the legitimacy of the expenses he deducts from income. He did not provide evidence why his previous contracts were terminated or a Record of Employment from his probationary employer. The mother sought this disclosure and the father decided not to provide it.
f) He is leading a lifestyle consistent with someone earning this level of income.

Part Ten – Spousal support

[219] The mother said she is not pursuing spousal support if she is permitted to relocate with the child to Wisconsin. The court will treat her claim as withdrawn.

Part Eleven – Conclusion

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

Primary residence and decision-making responsibility

a) The child shall have her primary residence with the mother.
b) Save as set out below, the mother shall have sole decision-making responsibility for the child.
c) The father may obtain information about the child directly from any of her schools, doctors or other service providers. The mother shall execute whatever documentation is required to facilitate this.
d) Each party shall be designated at the child’s school, while the child is in Canada, as a contact in case of an emergency and have the right to participate in any function that is open for parents to attend, including school trips and parent-teacher interviews.
e) The mother may relocate with the child to Wisconsin at the end of the child’s present school year.
f) Once the child relocates to Wisconsin, the father shall have decision-making responsibility over the child’s health care and extra-curricular activities when the child is in Canada. This authority does not extend to having the child see a counselor or a therapist.
g) The parties shall consult with each other before making any major decision for the child.

Travel and documents

h) The mother may obtain and renew all Canadian and American documentation for the child, including passports, birth certificates and health cards, and American citizenship without the father’s consent. The mother shall provide copies of all documents obtained to the father.
i) The child’s original documents shall remain with the mother.
j) The mother may travel outside of Canada and abroad with the child, without the consent of the father. The mother shall provide the father with a detailed itinerary of any vacation, including destination, address, mode of travel and emergency contact number, at least 30 days before travel.
k) The father shall not travel with the child to a country that is not a signatory to the Hague Convention without the prior notarized signed consent of the mother.
l) The father may travel outside of Canada and abroad with the child to a country that is a signatory to the Hague Convention, with the mother’s written consent, such consent not to be unreasonably withheld. The father shall provide the mother with a detailed itinerary of any vacation, including destination, address, mode of travel and emergency contact number, at least 30 days before travel. The mother shall provide the child’s passport to the father prior to travel, and the father shall return the child’s passport to the mother upon the return of the child.
m) The parties will provide each other with any documentation the other requires to travel with the child.

Parenting time

n) The father shall have the following parenting time with the child until the child relocates to Wisconsin:

1. Two out of every three weekends from Friday, with pick-up at 3 p.m. from school until Monday morning drop off at the start of school.
2. If January 31, 2025 is his weekend for parenting time pursuant to the existing temporary order, the father will have parenting time on that weekend and also have parenting time on the following weekend, starting on February 7, 2025. The mother will have the child with her the weekend starting on February 14, 2025. The parties will then continue the three-week rotation.
   If January 31, 2025 is the mother’s weekend for parenting time pursuant to the existing temporary order, the father will have parenting time on the weekend starting on Friday February 7, 2025. He will have parenting time on the following weekend starting on February 14, 2025. The mother will then have the child with her on the weekend starting February 21, 2025. The parties will then continue in this three-week rotation.
3. Every Wednesday from 3 p.m. until 6 p.m., with pick-up from school.
4. The entire March school break, starting with pick-up from school at 3 p.m. on the last day before the break and returning the child to the mother on the Sunday before school starts again at 5 p.m. This parenting time takes priority over the regular parenting schedule. The mother will have the child with her on the following weekend, as the three-week rotation resumes.
5. Video calls three times each week for up to 30 minutes each call, or as otherwise agreed upon by the parties.
6. If Mother’s Day falls during the father’s parenting time weekend, the father shall return the child to the mother that day by 10 a.m.
7. If Father’s Day falls during the mother’s parenting time weekend, the father shall have the child with him that day from 10 a.m., until he drops the child off at school on Monday morning.
8. If the school is closed, or this order does not provide for an exchange at the school, the exchange shall take place at the parking lot of the Freshco located at 731 Eastern Avenue, Toronto, Ontario. The exchanges shall be supervised, as agreed to by the parties.

o) Once the child relocates to Wisconsin, the father shall have parenting time with the child as follows:

1. Video calls three times each week, for up to 30 minutes each call, or as otherwise agreed by the parties.
2. The child shall spend the Spring school break with the father each year.
3. The child shall spend the Winter/Christmas school break with the father each year.
4. The father shall have six weeks of summer vacation time with the child each year, with his choice of two or three consecutive weeks at a time. In even numbered years, the mother shall have the first choice of summer vacation time and she shall advise the father of her chosen weeks by May 1st and the father shall advise the mother of his chosen weeks by May 15th. In odd numbered years, the father shall have first choice of summer vacation time and he shall advise the mother of his chosen weeks by May 1st and the mother shall advise the father of her chosen weeks by May 15th.
5. The child shall spend the Easter long weekend with the father every year from Friday to Monday. If the Easter long weekend falls close to the child’s Spring school break, the parties shall try to have the parenting time extended to include both.
6. The child shall spend the Canadian Thanksgiving long weekend with the father from Friday to Monday.
7. The father may exercise parenting time with the child in Wisconsin for up to two weekends a month from Friday to Sunday. The father shall provide the mother with at least two weeks notice if he will be exercising this parenting time.
8. The mother shall be permitted to exercise video and telephone parenting time every other day with the child during the father’s parenting time in Canada.
9. Any other parenting time the parties agree to.
10. The mother shall accompany the child to Canada and pay for all transportation costs for the father’s scheduled parenting time. The father shall accompany the child to Wisconsin at the end of his parenting time and pay for all transportation costs. If the father is unable to enter the United States, he may designate someone known to the mother, with reasonable notice to the mother, to transport the child.
11. The father shall be responsible for his own transportation costs for exercising his weekend parenting time in Wisconsin.
12. The parties are to execute whatever documentation is required to facilitate the transfer of the child between them on visits.
13. Parenting exchanges shall be supervised, as agreed to by the parties.

Communication

p) The parties shall communicate in writing only through a parenting communication application, such as Our Family Wizard, Talking Parents or AppClose.
q) The communications between the parties should be brief, respectful, and only relate to issues pertaining to the child.
r) Each party shall respond within 48 hours of any communication from the other party, provided it is related to the child, unless in the case of an emergency.
s) Written communication between the parties should be no more frequent than once a day.
t) The parties shall keep each other informed as to their current contact information, including their telephone number, email address and residential address.
u) If the child becomes ill or in need of medical assistance while in the care of one party, that party will notify the other party as soon as it is reasonably possible.
v) Neither party shall make negative comments about the other party in the presence of the child or discuss past or present legal proceedings with the child.
w) The parties shall use their best efforts to ensure that their friends and family members do not speak negatively about the other party in the presence of the child.
x) The parties shall encourage the child to have a good relationship with each other and the other party’s extended family.
y) The parties shall not share communication or adult discussions with the child or third parties, except for counsel, without the other’s consent.
z) The parties shall ensure that all information or documentation pertaining to the parties’ separation, including all personal correspondence or email communications and court documents, are not accessible to the child.

Child support

aa) The father shall pay child support to the mother in the amount of $824 each month, starting on August 1, 2022. This is the guidelines table amount for one child, based on an imputed annual income to the father of $88,800.
bb) The father shall be credited with the $824 each month he has paid for support since April 1, 2023. This leaves arrears owing of $6,592.
cc) The father shall provide the mother, by June 30th each year, complete copies of his business and corporate income tax returns, including all schedules and attachments, and copies of his notices of assessment.
dd) A support deduction order shall issue.

Other orders

ee) The mother’s claim for spousal support is withdrawn.
ff) If either party seeks costs, they shall serve and file written costs submissions by February 11, 2025. The other party will then have until February 25, 2025 to serve and file their written response (not to make their own submissions). The submissions shall be no more than 3 pages, not including any bill of costs or offer to settle. The submissions may be emailed to:
47Sheppard.OCJ.Family.Trialcoordinator@ontario.ca
gg) All other claims by the parties not dealt with above are dismissed.

[221] The court thanks counsel for their excellent presentation of this case.

Released: January 28, 2025

Justice Stanley B. Sherr

Footnotes

[1] Franklin Wisconsin is close to Milwaukee Wisconsin.
[2] The court is only summarizing the parties’ final positions delivered during closing submissions in this Part. They both served detailed draft orders – the father’s draft order was 14 pages long. The parties also clarified or changed some of their positions during closing submissions.
[3] Section 9 of the guidelines sets out a different mechanism for determining child support.
[4] The mother said they left in January 2019. Nothing turns on the difference.
[5] The father says this visit was for three weeks. Nothing turns on the difference...
[6] The mother stated she mixed up the times for the calls. She said she put a reminder system in her phone and has not missed a call since then.
[7] The mother’s sister and friend both testified and confirmed this.
[8] The mother did not provide evidence from her therapist or psychiatrist. She expressed concern that the father would weaponize this against her, as she feels he has with her anxiety and depression.
[9] The father continued to pay the mother’s car insurance after the separation.
[10] In particular, pages 7 to 14 of the Reasons.
[11] The father admitted to the clinician he also used to spank the child.
[12] The father also unreasonably paid another year of expenses for the Islamic school that the child was no longer attending while he was not paying any child support.
[13] The father’s counsel at trial was retained shortly before the trial. The father was not referring to him.
[14] The father did not provide a sensible explanation for why he failed to file his tax returns.
[15] The mother also had a US account. She would sometimes ask her father to send her money that he would send to that account.
[16] The father also deserves credit for his role in raising the child.
[17] The child also told the clinician that she feels safe in both homes and that neither party hits her.
[18] It was notable that the maternal grandparents did not provide affidavits for this trial. The mother said she wanted to protect them from testifying.
[19] The mother candidly admitted she focused on finding a partner on United States dating apps. This is how she met M.T. The mother and M.T. have met in person about 10 times for day visits – they also spent one week together. The mother flies to Chicago when the child is with the father. Due to religious reasons, the mother and M.T. have not been intimate.
[20] These were the annual expenses set out in the father’s most recent financial statement filed with the court.
[21] The court would have made this order even if the parties had not agreed on it.
[22] The father was hired as an employee by this company. The job was not through his corporation.
[23] This is based on billing $3,500 bi-weekly.