ONTARIO COURT OF JUSTICE

DATE: 2019-08-29

COURT FILE NO.: Toronto D91380/16

BETWEEN:

AAESHAH BILAL PHILIPS

Applicant (Mother)

— and —

UNJUM IQBAL SHOAIB KHALID

Respondent (Father)

Before: Justice Robert J. Spence

Heard on: August 12-16, 2019

Reasons for Judgment released on: August 29, 2019

Counsel:

• Ms. Adela Crossley, for the Applicant
• Respondent in person

R. J. SPENCE J.:

1: Introduction

[1] This was a trial following three years of litigation during which the parents fought over a number of issues. The issues centred primarily on the parties' twin children, a boy and a girl, both six years old (the children or twins).

[2] Throughout the proceedings and until the first day of trial, the mother had been seeking sole custody of the children. Father had been seeking joint custody. However, at the outset of trial, father agreed to a final sole custody order in favour of mother.

[3] The parties also agreed that the father would be entitled to obtain direct access to information from third parties pertaining to the children's health, education and welfare.

[4] And, finally, on consent of the father, the mother withdrew her claim for spousal support.

[5] The remaining issues for trial were:

(a) Whether mother should be permitted to relocate with the children from Canada to Australia;

(b) Wherever the children are living – whether in Canada or in Australia – what access should be ordered, having regard to the fact that the father resides in Qatar;

(c) What income should be imputed to father for child support purposes; and

(d) Should the father be entitled to a reduction in the child support he would otherwise be required to pay, having regard to father's costs in exercising his access to the children.

2: FACTUAL BACKGROUND

[6] The parents met each other while they were both living in Qatar. The father is a citizen of the United Kingdom. The mother is a citizen of Canada.

[7] The father was born and raised in England. His parents and much of his family continue to live in England.

[8] He attended a college in Buffalo, New York where he obtained a degree from a college in sports and health-related subjects. In 2008 he returned to England where he played semi-professional basketball. In 2010 he moved to Qatar where he began to work as a manager of a gym.

[9] The mother was born in Saudi Arabia, but she is a fourth-generation Canadian citizen. In 2012 she was living with her father (maternal grandfather) in Qatar under the auspices of a visa which was being sponsored by the maternal grandfather.

[10] The maternal grandfather introduced her to the father.

[11] The parents courted for a few months before they were married in June 2012.

[12] The mother became pregnant shortly after the marriage. The parents decided that it would be in the best interests of the children if they were born in Canada, so that they could have the benefits which arise from Canadian citizenship.

[13] Accordingly, during her pregnancy, the mother travelled on her own to Canada. The father remained behind in Qatar to run his business.

[14] The mother's family was living in the Toronto area. She was able to remain with or close to her family throughout the balance of her pregnancy until the birth of the children in February 2013.

[15] Several weeks after the children's birth, the mother travelled to England to spend time with the paternal family. After about eight weeks in England, the paternal grandmother accompanied the mother and the children back to Qatar.

[16] Both parties agree that the marriage was an unhappy one. The mother alleges that the father was abusive, both verbally as well as psychologically. She says that he had a bad temper and at times he lost control of his temper. On one occasion she says he threw a chair across the room in the mother's direction; and on another occasion she says that he threw a chair against a mirror. The mother says these incidents caused her emotional distress.

[17] The father acknowledges that he threw a chair once and that he broke some things. He says that while he did lose his temper on occasion, these kinds of issues were "very sporadic", and not as extensive as the mother made them out to be at trial.

[18] He also acknowledges that they were attending marriage counselling throughout the times they were living together.

[19] In May 2015 the parents and the children were intending to travel to England for the father's sister's wedding in Newcastle. Their trip from Qatar took them through Abu Dhabi. However, the father lost the daughter's passport at the Abu Dhabi airport, so that the daughter was unable to continue on to England.

[20] The parents agreed that the father and their son would continue to England, while the mother and their daughter would go to Canada.

[21] The mother and the daughter travelled to Canada. But instead of returning to Qatar with the daughter, she decided to enroll in a 13-month diploma program in business administration at Seneca College.

[22] Although the father was unhappy that she had decided to remain in Canada, he consented by email dated June 26, 2015.

[23] In a July 30, 2015 email from the mother to the father, the mother set out certain conditions which she asked the father to agree to before she would return to Qatar.

[24] Those conditions included the need for father to deal with his anger management difficulties. There were other conditions as well. For example, she asked that her residency status in Qatar be regularized; she wanted the twins to be enrolled in a "nursery or some kind of program/activity that allows them to learn and socialize"; and she asked that health care arrangements be put in place.

[25] The father testified that he agreed to the mother's conditions but that she didn't return home to Qatar. The mother disagreed with the father's characterization, and his assertion that he implemented the conditions she was seeking for her return to Qatar.

[26] Nevertheless, in October or November 2015, the father travelled to Canada with the parties' son, to try to reconnect the family and to reconcile with the mother.

[27] The father remained in a hotel while mother was attending school. During this two-week visit, the mother states that the father showed real interest in working on the parties' relationship.

[28] The father then returned to Qatar to his business commitments. The mother and the children came to Qatar shortly afterwards during her school semester break.

[29] Unfortunately, the parties' relationship did not improve. The father tried to persuade the mother to remain in Qatar without completing her college program in Canada. However, because of the deterioration in their relationship, and because mother wanted to complete her program, she decided to return to Canada.

[30] In January 2016, mother then returned to Canada to complete her winter semester at Seneca College. She took the daughter with her and left the son behind with his father. According to the mother, the father had agreed to bring the son back to Canada at the end of the mother's semester.

[31] The emails between the parties confirmed that mother's decision to leave the son with the father was made in "good faith", specifically, that the father would bring the son to Canada.

[32] In March 2016, the father pronounced an Islamic divorce.

[33] In April 2016, the mother returned to Qatar, leaving the daughter behind in Canada with the maternal grandmother.

[34] In May 2016 the maternal grandmother brought the daughter to Qatar.

[35] The mother remained in the parties' apartment for three-months, sleeping with the son.

[36] In July 2016, the mother and both children returned to Canada. The three of them have lived continuously in Canada since that date.

[37] The father says that following his pronouncement of the divorce in Qatar, the mother had custody of both children. She continued to have that same custody after she returned to Canada with the children in July 2016.

[38] The mother commenced her Application in this court in August 2016. The father delivered his Answer/Claim shortly afterwards.

[39] The father's first face-to-face visit with the children in Canada occurred in November 2016. Since then he has been to Canada a number of times to visit with the children. He has also exercised Skype access with them from Qatar.

[40] In 2017 the mother met her present husband (husband or stepfather) on an Islamic marriage website.

[41] In November 2017 the husband travelled to Canada to meet the mother in person, as well as the mother's family. During this two-week visit, the mother introduced him to the children.

[42] In February 2018, they began to discuss marriage.

[43] In March 2018, the mother travelled to Australia, together with the maternal grandmother to spend time with the husband. Her purpose in going there – apart from spending time with him and continuing to solidify their relationship – was to investigate school options for the children, investigate available health care for herself and the children and meet his family members in the community.

[44] She was unable to bring the children to Australia because of the cost. She left them with her brother in Toronto.

[45] While she was in Australia, he proposed marriage to her. She accepted.

[46] At the conclusion of her visit she returned to Canada.

[47] In June 2018 he came to Canada for another visit. During that visit they were married Islamically.

[48] The mother told the children in June 2018 that she and their stepfather were now married. She says the children were happy that he would become a part of their family.

[49] Since June 2018, the stepfather has been back to Canada for extended visits in December 2018 and August 2019.

3: ISSUE #1 – THE PROPOSED RELOCATION TO AUSTRALIA

[50] The stepfather is established in Australia and has a business there as well. Australia is his permanent home. Understandably, the mother and her husband wish to live together.

[51] One of the father's objections to the children moving to Australia is his concern over the possible lack of stability in the mother's relationship with her husband and the consequent instability for the children.

[52] The father is also concerned about the disruptive impact that the move to Australia would have on the children.

[53] The leading case on mobility is the Supreme Court of Canada decision in Gordon v. Goertz, [1996] 2 SCR 27. At paragraphs 49 and 50, the Court stated:

1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interest of the child, having regard to all of the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

3. This inquiry is based on the finding of the judge who made the previous order and evidence of the new circumstances.

4. The inquiry does not begin with a legal presumption in favor of the custodial parent, although the custodial parent's views are entitled to great respect.

5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.

6. The focus is on the best interest of the child, not the interests and rights of the parents.

7. More particularly, the judge should consider, amongst other things:

   a) the existing custody arrangement and relationship between the child and the custodial parent;

   b) the existing access arrangement and the relationship between the child and the access parent;

   c) the desirability of maximizing contact between the child and both parents;

   d) the views of the child;

   e) the custodial parent's reasons for moving only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;

   f) disruption to the child of a change in custody;

   g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?

[54] Although Gordon, supra, was decided in the context of a variation proceeding, the Ontario Court of Appeal has since held that the guiding principles in Gordon apply equally to mobility applications at first instance. Bjornson v. Creighton

3.1: The Stepfather and Evidence of Proposed Life in Australia in the Event the Court Permits Relocation

[55] In order to contextualize the mother's request to move the children to Australia, it is helpful to flesh out some of the evidence presented at this trial.

[56] That evidence included testimony from the stepfather who had come from Australia to participate in this trial.

[57] The stepfather is an Australian citizen, born and raised there. For a period of time, he worked for a football club in Turkey, where his late father lived.

[58] However, since 2017 he has been the technical director of a football club in Melbourne. He owns 50% of the club.

[59] He testified that he earns a comfortable income in connection with his business interest.

[60] He has a graduate certificate/degree in sports coaching and he is currently taking a Master's program in sports coaching at Torrens University in Adelaide.

[61] He has approximately 14-15 years of coaching experience with this, and other football clubs.

[62] In his current capacity he looks after players of various backgrounds, ranging in age from four years to 40 years. The players also have diverse ethnicities, as well as coming from mixed social strata. The players are both male and female.

[63] His family in Australia consists of his mother, his uncle and his aunt. They live about 1-1/2 hours away from the husband's home in Melbourne.

[64] He describes himself as a "moderate" Muslim. He likes to dialogue with people of all religions.

[65] The husband has met the mother's family in Canada. He has also met the mother's father by video, as her father continues to live in Qatar.

[66] The husband currently lives in a three-bedroom, two-bathroom home on a one-acre block in Melbourne. His home is close to supermarkets and schools. He describes the location as a "perfect family area" to live in.

[67] He testified about the immigration process for the mother and the children if they were permitted to move to Australia. Based on his inquiries in Australia, he said that the mother's application to obtain a permanent residence permit takes about 18 months to complete. However, she would be entitled to a "bridging visa" which would allow the mother and the children to enter Australia and to live there while the permanent residence application process is underway.

[68] During that bridging period, the mother and the children would be entitled to avail themselves of Australia's health care system, and the children would be able to attend school.

[69] The mother has investigated the school situation for the children. She has determined that Sirius College would be an appropriate school for the children to attend; and Sirius would be willing to support the children's application for enrollment upon their arrival in Australia.

[70] Sirius College is a private school. The husband's father was a co-founder of the school. The letter from Sirius dated July 24, 2019 states:

This letter is to confirm that [the husband] is well known to us. Also, his father was one of the co-founders of our school. [Referring to the mother and to the children, all by name, the letter continues], Sirius College would be happy to support these children's applications to our school upon their arrival to Australia. [Signed by the College's Business Manager]

[71] Sirius provides typical academic courses but also has electives for Islamic studies. The husband testified that while many Muslim children attend the school, it is open to students of all ethnicities and religions.

[72] The husband is willing and able to pay any private school fees that would be incurred for their attendance at Sirius.

[73] The school is located about 25 minutes driving time from the husband's home. He testified that his business obligations are sufficiently flexible that he would be able to drive the children to school each morning and pick them up at the end of the school day.

[74] Somerton Road Medical Centre in Melbourne has known the husband for 16 years and the doctors at the Centre have attended to his medical needs as a patient during that period of time. The Centre confirms that it would be willing to take on the mother and the children as patients of the clinic once they arrive in Australia.

[75] The stepfather made it clear that he does not believe the marriage to the mother was unduly hasty. Both he and the mother testified that they were considered and thoughtful before deciding to enter into their marriage.

[76] The mother's unchallenged evidence is that Muslims do not date for a long time. After a couple meets one another, the idea is for each to get to know the other, with the intention of eventually marrying. In this case, as I noted earlier, the parties began discussing marriage in February 2018.

[77] Since they first met, the stepfather testified that not a day has passed when they are apart that they haven't exchanged emails.

[78] The mother and the stepfather are planning to have a child or children of their own.

[79] The mother is currently unemployed. Her financial statement sworn in February 2019 discloses income of about $30,000 per year. This is comprised of a combination of Child Tax Benefits, H.S.T. credits, the Ontario Trillium Benefit, and the temporary child support which the father is paying. In addition to this amount, the stepfather is contributing about $2,500 per month to help her out.

[80] It does not appear from the evidence that the mother has any real employment prospects such that she could become entirely self-sufficient financially.

3.2: Stepfather's Relationship with the Children

[81] The stepfather first met the children in Toronto in November 2017. He came to one of their soccer games with a stuffed Koala bear and a stuffed Kangaroo in hand, as gifts for the children. He said the children were delighted with those gifts.

[82] He said that the time he has spent with the children when he is in Canada has been rewarding for him and for the children as well. The children enjoy their time with their stepfather and are happy that he has become a part of their family.

[83] When the stepfather is in Australia he will often Skype with the children. He says this is not done on a structured basis, so that it occurs sometimes daily, sometimes not.

[84] The stepfather's contact with the children when he is in Australia sometimes includes calling them when they are getting ready for bed, so that he can read them a bedtime story.

[85] With the passage of time, the stepfather and the children have continued to cement their relationship into something that both mother and stepfather describe as meaningful and loving.

[86] At some point following the marriage between the mother and the stepfather, the children began to call him "daddy foofoo".

[87] The children recognize that the stepfather is not their biological father. They have always called their biological father "babba", which means "father" in Arabic.

[88] The stepfather was specifically asked on cross-examination how he feels about his relationship with the children. He described it as "noble", "rewarding", a sort of "binding friendship".

[89] The stepfather also made it clear that he has every intention of doing what he can to preserve the children's relationship with the father. He does not wish to replace the father but, instead, seeks to build on his friendship with the children, to support them, and to focus on their "hopes and dreams".

[90] He said that he is constantly learning about the children as his interaction with them increases. With the mother's guidance, he hopes to develop that supportive role as much as he can.

[91] Ideally, the stepfather would like to develop a friendship with the father, so that the relationship with the children, for all three adults, could become "more inclusive". He testified that he wants the father to be part of the "journey" that the children are on so that, hopefully, all the adults will continue to work together in the children's best interests.

[92] The stepfather impressed the court with his forthrightness and his sensitivity to the children's needs. The court was also impressed with the stepfather's sensitivity to the father and his expressed recognition of the importance of the father's continuing relationship with the children.

3.3: Father's Objections to the Proposed Relocation

[93] As I noted earlier, one of the father's concerns is the disruptive impact of the move on the children.

[94] He argues that the children have had considerable disruption in their lives already. They were born in Canada. They moved back to Qatar, and they have moved again from Qatar to Canada.

[95] They have now lived in Canada for three years.

[96] He points out – correctly – that the children are now stable. They are settled into a school where they are doing well. They have the supports of the maternal family, which is a benefit to the children.

[97] He argues that a move to Australia would change all of that. The children would be forced to move to a new school; they would no longer have the benefit of the maternal family being close at hand.

[98] He points out that the mother's marriage to her current partner is a marriage of relatively short duration.

[99] He expressed concern over what might happen if the mother and the children move to Australia and the marriage does not last.

[100] He did not take issue with the mother's evidence that Muslins date for relatively short periods of time before moving into marriage.

[101] Nor did the father present any evidence of any sort of instability in the relationship between the mother and her husband.

[102] In fact, the evidence suggests that the relationship, albeit of only about two years' duration is a strong one. So much so, in fact, that the husband flew from Australia to Toronto to testify at this trial.

[103] The father also refers to a letter which the mother's previous lawyer sent in February 2019 to the father's then-lawyer, disclosing certain information about the proposed move to Australia. The letter did not disclose the stepfather's full name. Furthermore, it disclosed a school name which is different from Sirius College. The father suggests that to the extent that the information in this letter is erroneous, this is evidence that the mother was acting in bad faith. The mother explains that the school changed when the father's residence in Melbourne subsequently changed.

[104] In my view, little turns on the disclosure/non-disclosure statements in that February 2019 letter. I might have taken a different view had there been some sort of pattern of deception on the part of the mother. However, in the court's view, the evidence discloses no such pattern.

[105] The father's concerns about the lack of stability of the mother's marriage and his concerns about how the children will adjust if they move to Australia fall into the realm of speculation. They are not evidence-based. Non evidence-based, speculative concerns will be given little or no weight by a court in deciding whether to grant a request for relocation, as I will discuss shortly.

[106] The case of Woodhouse v. Woodhouse, is a decision of the Ontario Court of Appeal. The father referred the court to this decision, arguing that the principles stated by the Court of Appeal are applicable to the present case.

[107] In Woodhouse, the custodial mother sought to relocate with the children to Scotland in order to live with her new husband. The trial judge did not permit the mother to move to Scotland. The Court of Appeal dismissed the mother's appeal. The Court of Appeal noted:

The trial judge found the distance of the proposed move daunting. The probable effect of the move on the children was predictable. Having gone through the disruption of their parents' divorce and the adjustment of having their mother's new partner come to live with them, they would have to leave their father, paternal grandparents, neighbourhood friends, and, in the case of Michael, his school. The trial judge found that during the marriage both parents had been involved in caring for the children. Following the breakdown of the marriage, the father had paid support regularly and had exercised access consistently.

[108] The Court also stated:

The mother's actions in remaining in Scotland with the children beyond the agreed period and in obtaining an interim custody order from the Scottish courts, raised the question whether, if permitted to move, she would comply with any Ontario order concerning access. Against this background, the comments of the trial judge take on a different light. The trial judge was troubled by the attitude shown by the mother during her trip to Scotland towards the father's desire to continue to play a significant role as the children's father. He took from her evidence that she did not regard this to be in the best interests of the children. The trial judge made the finding that the mother did not place sufficient importance on the children's contact with their father.

[109] As Gordon v. Goertz noted, each case will "turn on its own unique circumstances".

[110] And in that regard, the following is where the Woodhouse case differs from the present case.

[111] First, in Woodhouse, the parents lived relatively close to one another, close enough in fact that the father was able to exercise regular and frequent access, including overnight access on weekends.

[112] In the present case, the father lives thousands of kilometres away from the children, so that this kind of access has neither occurred, nor does the father even suggest it would be possible to occur. As I noted earlier, the father has been to Canada fewer than two handfuls of times over the past three years.

[113] Second, in Woodhouse, the trial judge found as a fact that at the time the parties negotiated their separation agreement:

Neither parent contemplated that the other would leave southern Ontario. He [the trial judge] also found as a fact that the father's willingness to forgo the mobility clause was based on the mother's representation to him that she had no intention of leaving Ontario.

[114] In the present case, there was neither a separation agreement, nor were there any such representations made by the mother.

[115] And third, in Woodhouse, the mother breached a court order, which limited her travel to Scotland to a defined period, by remaining in Scotland beyond the period permitted by court order. Even when the father returned to court and obtained an order requiring the mother to return the children to the jurisdiction, the mother failed to do so. This necessitated a further return to court by the father, who was then granted a temporary custody order. In the meantime, the mother had commenced a proceeding in Scotland and obtained an order granting her temporary custody. In that proceeding she made no disclosure of the Ontario court proceedings and, further, she represented to the Scottish court that the children were resident in Scotland. It was only after the mother was made aware of the temporary custody order which the father obtained in Ontario, that she finally returned with the children to Ontario.

[116] In the present case, the mother has not travelled to Australia with the children. She has not sought to obtain any custody orders beyond that which she was entitled to. She has not sought by subterfuge to undermine the Ontario court's authority or, in any other way to take actions intended to deprive the father of reasonable access to the children.

[117] The father referred the court to a number of other cases where mobility requests were denied by the court. However, those cases mostly dealt with situations where the custodial parent was seeking to move a child a greater distance from the access parent, in some cases, a considerable distance. The access parent would have been the "left-behind parent". These kinds of moves would have negatively impacted on the maximum contact principle cited in Gordon, a principle often referred to in other court decisions which have dealt with mobility issues.

[118] No evidence was led on the issue of travel time from Qatar to Toronto, versus travel time to Melbourne. While the court is unable to conclude that the distance from Qatar to Melbourne is any greater than the distance from Qatar to Toronto, it is sufficient to state that the distances to both cities are very considerable.

[119] Other cases which the father referred to dealt with the custodial parent's desire to move for bad faith reasons, for example, a desire to sever or minimize the contact between the children and the access parent. (similar to the bad faith which the court found in Woodhouse, supra). All the cases which the father relied upon are very much distinguishable on the unique facts of the present case.

3.4: The Proposed Move to Australia is in the Children's Best Interests

[120] I return to the case of Gordon v. Goertz, supra. As I noted, that case sets out a non-exhaustive list for trial judges to consider in deciding whether any move would be in the best interests of a child.

[121] I will address each of the considerations in that list separately.

(a) The existing custody arrangement and relationship between the children and the custodial parent

[122] The children live with their mother on a fulltime basis. That status quo has continued in place since the mother and the children moved to Canada in July 2016. The evidence is that the children are being raised by the mother in an effective and child-focused manner. The father himself acknowledges that the mother is doing a good job with the children.

(b) The existing access arrangement and the relationship between the children and the access parent

[123] Both parents have different positions on the issue of how the father's access has unfolded since the children moved permanently to Canada in July 2016. The father's position is that the mother moved the children from Qatar to Canada unilaterally. He even used the word "abduction" at some point in his testimony. Furthermore, he alleges that the mother has been inflexible in her granting of access to the father on those occasions when the father has been able to come to Canada.

[124] The mother's position is very different. On or about July 18, 2016 the Qatari court ordered that the father was to hold the children's passports. Subsequently a Criminal Investigation Division Officer in Qatar required the father to give the children's passports to the Officer who, in turn, gave the passports to the mother. The mother then left Qatar with the children on July 19, 2016. Nothing in this suggests that the mother engaged in any subterfuge in taking the children to Canada to live.

[125] As I noted earlier, the mother had no legal status in Qatar. Following her marriage to the father, it became the father's responsibility to sponsor her for permanent residence. He failed to do that. This failure required the mother to "visa hop" every 60 days. Specifically, she had to leave Qatar once every 60 days, and then return to Qatar whereupon she would be given permission to remain for another 60-day period. The father never really provided any understandable explanation for his failure to take the necessary steps to obtain permanent resident status for the mother.

[126] As I also noted earlier, the marriage had deteriorated to a significant degree, and the father had pronounced an Islamic divorce in March 2016, thereby ending the parties' marriage, religiously.

[127] The parties subsequently exchanged numerous emails following the mother's move to Canada. The father says that he did consult legal advice about what he could do to possibly require the children to be returned to Canada. However, according to the father, nothing came of this.

[128] The father took no steps to come to Canada to visit his children for several months.

[129] On January 19, 2017, Justice Curtis as the case management judge ordered both Skype access for father, as well as some specified physical access, a few hours at a time to occur while he was in Canada, from January 23, 2017 to January 28, 2017. The mother consented to this order.

[130] There is no evidence that the mother refused to comply with this order.

[131] Since the father's visit to Canada in January 2017 (or November 2016), he has visited on seven subsequent occasions. The mother has facilitated access on all but one occasion, namely, March 2018. On that visit, the father acknowledged that his notice to the mother was short, but he had hoped the mother would be flexible. However, the mother responded that the notice was too short and that she had already made plans with the children that could not be changed.

[132] On the father's other trips to Canada, there were multiple access days facilitated by the mother, including one or more overnight visits beginning in September 2017.

[133] The constant refrain from the parties was this. Father accused mother of being unreasonable by attempting to limit his access times or by interfering with his Skype calls to the children. The mother said that any physical access requests had to be provided well in advance as the parties had agreed, or the court had ordered. And the father was not always adhering to the notice periods.

[134] At the conclusion of this trial, the father wanted to know (there was no motion before the court), whether he could have some additional access to the children during the remainder of his present stay in Toronto for the month of August. I suggested that the parties could step outside the courtroom and see if an agreement was possible. When they returned shortly afterwards, they had reached an agreement to provide additional access to the father for the remainder of his stay in Toronto in August. The mother consented to a court order to reflect that agreement. This indicates to the court that the mother was prepared to be flexible, even in the absence of a formal motion brought by the father.

[135] It is not uncommon in access cases that parents will characterize the access requests and the degree of cooperation from the custodial parent differently. In the present case, I do not conclude from the evidence that mother was taking steps to actively prevent the children from maintaining a relationship with the father.

[136] Instead, I glean from the evidence and the various text/email exchanges between the parents that the mother sometimes did not accommodate the specific dates the father was requesting to visit with the children because he had given her insufficient notice of his travel to Canada.

[137] The father acknowledged – and the exchange of emails confirmed - that he did not always comply with the notice requirements that the parties had agreed to or the notice requirements that were provided for in the temporary court order dated October 12, 2018. However, he felt that the mother was being overly rigid in her application of that order.

[138] Rather than concluding that the mother was in any way obstructionist with respect to father's access, I conclude that she did facilitate his access, within the practical limits of an access parent who lives a great distance away and who is not always able to plan his trips well in advance.

[139] Without in any way being critical of the parties or their counsel, the temporary consent access orders were too vague and too open-ended, requiring a level of agreement and cooperation between the parents that was probably unrealistic at that stage of the litigation.

[140] The mother candidly testified that the children have a good relationship with their father and that she is open to facilitating as much access as is appropriate in the circumstances. And it was clear to the court that her feelings about the importance of the father's access relationship were conveyed to the stepfather, given his testimony at trial, more specifically, about how important it is that the father remain a significant part of the children's lives.

[141] The evidence in this case leads me to conclude that the relationship between the father and the children is important, that the continuing relationship is in their best interests and that the mother will do her best to facilitate that relationship.

[142] At the same time, the father has made a choice to remain in Qatar while his children have lived many thousands of kilometres away since July 2016. So regardless whether the children live in Toronto or in Melbourne Australia, it makes little difference in terms of the father's ability to visit with the children.

(c) The desirability of maximizing contact between the children and both parents

[143] As I noted earlier, the children will continue to live with the mother regardless of the city in which they live. Furthermore, the father's ability to maintain his connection with the children is not impacted by whether the children live in Toronto or in Melbourne.

[144] The principle of maximum contact is about the importance of the children maximizing their contact with both the mother and the father. This principle may be the single most important consideration which arises from the decision in Gordon v. Goertz.

[145] In Orring v. Orring, 2006 BCCA 523, the British Columbia Court of Appeal said this, at paragraphs 52 and 53:

[53] Despite the [trial] judge's conclusions and his recognition that the maximum contact principle is "of course, a principle consideration", the judge failed to consider that when the proposed relocation did not jeopardize the access parent's contact with his children, there was no longer any reason to question the custodial parent's wish to get on with her life.

[146] This statement is particularly apt in the present case. As I noted, the father lives in Qatar, not in Canada. Therefore, whether the mother lives with the children in Canada or in Australia, the father's ability to maximize his contact with the children is in no way negatively impacted.

(d) The views of the children

[147] The views of the children are unknown to the court.

(e) The custodial parent's reasons for moving only in the exceptional case where it is relevant to that parent's ability to meet the needs of the children

[148] The mother has no meaningful employment prospects in Toronto. Her husband is a financially comfortable person who is willing and able to support the children and the mother. The children would benefit by having their own home to live in were they to move to Melbourne. They would have some of the material benefits that could not be afforded to them in their present circumstances.

[149] While the court appreciates that the financial wellbeing of the custodial parent is not the overriding concern in cases such as this, it is a factor which the court does take into consideration.

(f) Disruption to the children of a change in custody

[150] Not applicable as there will be no change in custody.

(g) Disruption to the children consequent on removal from family, schools, and the community they have come to know

[151] There is no question but that the move will disrupt the children's schooling; it will remove them from the maternal family supports in Toronto and it will remove them from their community.

[152] All of that said, in any mobility case where the proposed move is more than a couple of hours' driving time, such a move, by definition, would disrupt a child's schooling and immediate community. Such a relocation would also remove the child from immediate family supports.

[153] Those considerations, while relevant, are not, by themselves, a reason for preventing a move from occurring. Instead, it is about a balancing of all considerations in the non-exhaustive list set out by the Gordon court.

[154] As noted earlier, the father had expressed concerns about what might happen if the mother were allowed to move the children to Australia. That kind of speculative, non evidence-based concern was dealt with in the case of Orring v. Orring, supra. In that case the court stated at paragraph 55:

There is nothing in Gordon v. Goertz to suggest that possible negative consequences from a proposed relocation should undermine the weight given to a custodial parent's views, contrary to the judge's analysis in this case. Both Lowcay v. Lowcay, supra, and Ganson v. Ganson (2003), 121 A.C.W.S. (3d) 1097, 2003 BCSC 544 confirm that mobility cases inevitability involve some degree of uncertainty about what may happen in the future following a relocation but that alone is no reason to disregard the custodial parent's views about the potential benefits. It is true that economic prospects may dissolve, relationships may fail and educational opportunities may disappoint. Nonetheless, barring an improper motive reflecting adversely on the appellant's parenting ability – and there was no such improper motive suggested here – the judge ought to have accorded great weight to the appellant's views about the prospective benefits of the relocation.

[155] The case of Antonella Trisolino v. Alexander Christian David De Marzi, 2012 ONSC 3921, is a decision of the Superior Court in Ontario. Even though Orring, supra, is a decision of the British Columbia Court of Appeal, it noteworthy that Trisolino followed Orring. In Trisolino, the court had the following to say, beginning at paragraph 42:

[42] That said, it is clear from the cases that the question of who the primary caregiver is is of considerable importance in the analysis of whether a parent should be permitted to move to another jurisdiction.

[43] As [the late] Prof. Macleod wrote in his annotation to Bjornson v. Creighton, 2002 CarswellOnt 3866:

The inference from the recent case law seems to be that although there is no legal presumption in favor of allowing a primary caregiver to move, a parent who objects to a bona fide move will have to prove that the proposed move is not in the child's best interests to convince the court to deny such a move… Although mobility cases, like all custody\access cases, are decided by reference to the best interests of the child, most moves are relatively neutral from a child's point of view, aside from reducing contact with the stay-behind parent. Families move all the time and children adjust. Most children do not have special needs that are adversely affected by a move. Simply put, most moves are parent-motivated and most mobility cases are about whether a primary caregiver should be allowed to move on with his or her life without having to forfeit custody. At the present time, the answer appears to be that he or she should be able to move on with the children so long as he or she will not use the opportunity to destroy the children's relationship with the stay-behind parent.

[156] Two main points should be highlighted from these comments. First, the "considerable importance" which the courts should accord to the primary parent who decides to move.

[157] Second, that the primary parent needs to be able to get on with her life so long as she isn't moving for the purpose of negatively interfering with the other parent's relationship with the child. In other words, if the intended move is bona fide, then the parent should generally be allowed to move.

[158] What is notable and unusual about the present case is that, unlike most mobility cases, where the other parent is the "stay-behind parent", in terms of the physical contact between this father and the children, the move to Australia makes no difference at all. Simply put, the father in this case is not a "stay-behind parent".

[159] On the evidence presented, the move to Australia will allow the mother to plan for the security and wellbeing of the children, both personal and financial. As the sole custodial parent, her views should be accorded respect. And in the absence of compelling reasons to prevent that move, the court must recognize that the children's best interests will be served by a happy and well-functioning custodial parent. Orring v. Orring, supra

[160] The mother should be afforded the same ability to get on with her life as the father in this case. The mother has remarried. She wishes to have a child with her new husband. All of this is natural and understandable. And, importantly, it is no more than what the father wishes for himself. He testified that he married his "fiancé" "religiously" in May 2018, following his religious divorce of the mother. In the same way that the mother wants to be able to get on with her life, the father also wishes to get on with his life.

[161] While the father's concern that the proposed move to Australia would be too disruptive for the children, is a sincerely held belief, the court finds that this disruption, while a consideration, does not outweigh all the other considerations required by Gordon v. Goertz, supra. A full weighing of all those considerations leads the court to conclude that the proposed move to Australia is in the best interests of the children.

4: Issue # 2 – The Father's Access

[162] In determining the father's access to the children, the starting point is the Children's Law Reform Act, (Act) which provides:

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). [2006, c. 1, s. 3 (1).]

(i) Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application. [2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.]

[163] Subsection 24(2) is a non-exhaustive list of the considerations which may apply in determining the child's needs and circumstances. Needs and circumstances must be considered by the court in the ultimate determination of what is in the best interests of the child.

[164] I do not propose to consider each of the factors in subsection 24(2) individually, as I have already canvassed much of this in the previous section of my reasons, dealing with relocation.

[165] The issue in this section of my reasons is much more focused, as it pertains solely to what access is in the best interests of the twins.

[166] I turn first to the parties' respective positions. In examining their positions, the court focuses primarily on paragraph 24(2)(e) of the Act.

4.1: The Father's Access Position

[167] The father seeks essentially three categories of access, namely, physical access in the children's country of residence, physical access to enable the children to travel to the United Kingdom, and remote access between Qatar and the children's home.

[168] I set out the essence of the father's request regarding each of these categories.

[169] While the children are in Australia, he seeks to spend three uninterrupted weeks, twice yearly with the children, for a total of 42 days each year.

[170] He would pick up the children at their home and return them at the end of each 21-day period. If they are in school during access periods, or engaged in extra-curricular activities, he would be responsible for taking them to school or activities and picking them up at the conclusion.

[171] He would allow the mother to have one telephone/video contact with the children each evening.

[172] I turn next to the United Kingdom access request. As I noted earlier, the father's paternal family lives in the United Kingdom.

[173] The father seeks three uninterrupted weeks twice yearly in the United Kingdom, again for a total of 42 days each year.

[174] These trips would be scheduled during the children's school breaks.

[175] He would allow the mother to have one telephone/video contact with the mother each day while they are in the United Kingdom.

[176] Finally, I turn to the father's request for remote access while he and the children are physically apart.

[177] He seeks telephone/video access every other afternoon at 4:00 p.m. (children's time zone), for a period of five to ten minutes at a time, uninterrupted.

[178] In addition, he seeks every Friday and Monday at 4:00 p.m. (children's time zone), for approximately one hour of story time/pre-planned activity time, uninterrupted.

4.2: The Mother's Access Position

[179] The mother's access position can be divided into two categories, namely, the physical access and the remote access.

[180] The father would have physical access with the children in Australia up to two weeks, twice yearly, while the children are on school vacation. During the two-week period, the children would spend the fourth day of each week and the fourth night with the mother in the children's home. This would continue until the children reach the age of 10 years, following which the two weeks would become an uninterrupted period of access.

[181] In the event the father wishes to visit Australia more than twice yearly, he would inform the mother 30 days in advance of the visit, and he would be entitled to further access as agreed by the parties.

[182] The mother seeks a 30-day notice period for any such additional access, together with the father's specific proposal, following which the mother would respond at least 20 days beforehand. If the mother is unable to accommodate the father's request, the parties would agree on a specific access schedule at least 14 days prior to the father's arrival in Australia.

[183] The father would deposit his passport with the mother prior to the commencement of any access in Australia.

[184] The mother is prepared to "review" the issue of travel to the United Kingdom once the children have settled in Australia and have reached the age of eight years.

4.3: Analysis

[185] The parents take different positions insofar as the father's involvement in the children's early life in Qatar. The mother states that the father was largely uninvolved with the children, leaving the mother to take care of the children on a daily basis. She says that the father's time was spent mostly on his business interests, requiring the mother to take on most of the child-rearing responsibilities.

[186] The father disputes this, asserting that he was a very involved parent.

[187] However, the extent of the father's involvement in the first three years of the children's lives is of less significance than his involvement in their lives between the age of three years, after the children came to Canada, and their present age of six years.

[188] As I noted earlier, the mother moved with the children to Canada following the deterioration of the marriage and the father's pronouncement of an Islamic divorce.

[189] The children have remained in the constant care of the mother for the past three years.

[190] The father has had the following physical access to the children, in Toronto, beginning in November 2016 or January 2017:

(a) January 2017 – over a three-day period, four hours per day – no overnights;

(b) August 2017 – over an eight or nine-day period, two hours on weekdays and 12 hours on the weekend – no overnights;

(c) September 2017 – over an eight-day period, four hours per day – one overnight;

(d) June 2018 – over a nine-day period, daytime access, including two overnights;

(e) August 2018 – over a 10-day trip there were about six days of access, about two hours daily, one overnight;

(f) March 2019 – during a two-week trip to Toronto, mid-week access during the days, and one or two overnights; and

(g) July/August 2019 – access over approximately an 11-day period, ranging from about three hours during the day to about eight hours during the day – no overnights

[191] In summary, then, since the children's move to Toronto just over three years ago, the father has visited them on seven or eight separate occasions. He has had daytime access of a few hours at a time, over the span of several days on each of his visits. And he has had approximately six one-overnight visits.

[192] He now seeks to go from those six, one-overnight visits over the span of three years, to four 21-day overnights, for a total of 84 overnights a year.

[193] During his closing submissions, I asked the father whether he thought that perhaps an immediate jump from single overnights at a time, having occurred sporadically over a period of three years, to four periods of overnights of 21 days at a time, for a total of 84 days a year might be too large a jump for the children. He disagreed with that suggestion.

[194] In my view, the father's request is unreasonable and not child-focused.

[195] I appreciate that the father loves the children. The children would appear to enjoy spending time with the father. The father has tried to visit with the children on those occasions when he has travelled to Canada. The father/child relationship is an important one.

[196] Nevertheless, I conclude that the father's plan is not realistic. It does not take into account the need for the children to stabilize their lives and to settle in when they reach their new home in Australia. Nor does it consider that the children should be given the opportunity to slowly adjust to ever-increasing days and nights that they will spend with their father.

[197] The father does not appear to appreciate the significance of the children moving to a different country and to a different school. On the one hand he argued that this move would be so disruptive to the children that the court ought to prohibit the move entirely. And on the other hand, he seems dismissive of any disruption resulting from this move and an awareness that this disruption in the children's lives should not be exacerbated by additional disruptions and major changes to their lives, beyond what is necessary.

[198] The unreasonableness of his plan for overnight visits is compounded by his request that the children be made available on alternate days for 4:00 p.m. telephone/video calls. This does not consider that the children might still be in school, that they might be involved in after-school activities, or other preplanned events which may be important to them.

[199] The father would have demonstrated greater sensitivity for the needs of his children had he proposed a plan whereby he would begin with short periods of overnight visits, and then expanding those visits as the children become used to spending ever-increasing amounts of time with their father.

[200] Equally unrealistic is the father's claimed entitlement to one-hour preplanned activities by telephone/video every Friday and every Monday at 4:00 p.m. I repeat my comments in the preceding paragraph. Moreover, this request is even more intrusive into the children's lives. It is one thing for a young child under the age of seven or eight years to spend 5 to 10 minutes on a Skype call. It is entirely different to ask that child to spend a full hour interacting by Skype. There is nothing in the father's proposal in this regard that reflects the need for flexibility and for age-related concessions, or for activities or other commitments that the children might have on an ongoing basis.

[201] The mother's plan is more realistic, and more child focused.

[202] That said, her plan is somewhat overly protective of the children. As well, her plan also requires a level of ongoing agreement between the parties, which may not be workable, given their history.

[203] I turn first to her plan for Skype access. Rather than pinning down the children to a specific time of day when the Skype access occurs – as the father has done – the mother simply proposes Skype access twice weekly, as well as such additional Skype access as agreed by the parties.

[204] The children do need to have ongoing contact with their father. Skype access of at least twice weekly should be the minimum contact. This is particularly important when one realizes that in reality these Skype contacts may turn out to be for relatively short durations.

[205] In my view the duration of the Skype visits should not be pre-defined by a certain number of minutes. Instead, those visits should be determined by the children's wishes and their needs, as well as their level of attention on any given visit. The visits may be of short duration – five minutes or so – or they may be of longer duration – perhaps 30 or 40 minutes. The father and the mother should take the children's lead on these visits.

[206] That said, there needs to be an outside limit so that any plans the mother may have for the children will not be derailed.

[207] Some flexibility will be required if these visits are going to be meaningful for the children. I will provide for that flexibility in the order I make at the conclusion of these reasons.

[208] I turn next to the in-person visits. The mother's proposal for "up to two weeks two times per year", with the possibility of more in-person visits is not entirely unreasonable.

[209] That said, a total of four weeks of in-person access with the children is not sufficient to promote a meaningful relationship, and to allow that relationship to develop to its full potential. In the court's view, more frequent visits than that proposed by the mother, but for a somewhat shorter duration than that proposed by the father are in the children's best interests. More frequent visits will more likely reinforce the father/child relationship. And the shorter duration provides the children with a comfort level, knowing that they won't be away from their mother for an overly long period of time. The children will only be six or seven years old when they move to Australia.

[210] The evidence in the trial was that there are four school breaks each year. The breaks occur in March, June, September and December.

[211] The December break is the longest, approximately six weeks in duration. The other three breaks are two weeks each in duration. The total of the school breaks is about 12 weeks.

[212] Some of these school break periods should be set aside for the children to spend with the mother and the stepfather, as well as the children's friends, as those friendships develop. As well, the mother may wish to vacation with the children during some of the school break. It is reasonable to expect, for example, that since much of the mother's family lives abroad, she will want to take the children for visits with the maternal family. The children's relationship with their maternal family is important and should be fostered.

[213] Equally, the children should come to expect that they will be able to spend a portion of their school breaks with the father.

[214] My order will provide initially for the father to have in-person access totalling six of those 12 weeks of school breaks, moving to seven weeks in 2022. However, those six weeks will not all be immediately on an overnight basis. The overnights will be phased in to allow the children to develop a level of comfort and security in their new surroundings.

[215] The mother's proposal that the children spend every fourth day of the week and every fourth night of the week with her during those access periods is unnecessary and overly protective.

[216] While that request comes from mother's well-intentioned desire to protect her children and to give them a feeling of security, it is important that when the children do spend time with their father, they learn to accept that this is child/father time. In the normal course, it is reasonable to expect that the children will adjust to this.

[217] The father's request to travel with the children to the United Kingdom to visit with the paternal family is something that the mother is not prepared to deal with at this time. Her proposal that this issue "be reviewed" once the children are "at least eight years old", is not tenable. It is a recipe for further litigation between the parties. It is important for the parents and for the children to provide as much certainty as possible, bearing in mind that circumstances often change as children get older and what is in their best interests at age six, may not be in their best interests several years later.

[218] In the same way that my order will give the children the opportunity to maintain and strengthen the relationship with their maternal family, they should have a similar opportunity to develop and strengthen the relationship with their paternal family.

[219] By the time the children move to Australia they will be approaching their seventh birthday. In my view, waiting until the children turn nine years of age before they begin to travel internationally away from their mother and their country of residence is a balanced approach.

[220] By the time the children reach nine years of age, my order will have allowed them to spend a number of weeks with their father, in Australia. By then, I expect they will have developed a comfort level being with their father and away from the mother, so that an international trip to the United Kingdom to visit with the paternal family will be exciting for them, rather than unduly disruptive and stressful.

[221] My order will provide for certainty with respect to travel to the United Kingdom.

[222] Given the large distance between Qatar and Australia, as well as the father's business commitments, there will need to be a measure of flexibility for the in-person access visits. However, because of the conflict between the parties which led to the breakdown of their marriage, as well as the three years of subsequent litigation, it is in the best interests of the children that the court order minimizes as much as possible the need for the parties to reach agreement with respect to the various forms of access. That is what my court order is intended to accomplish.

5: ISSUE #3 – DETERMINING FATHER'S INCOME FOR SUPPORT PURPOSES

5.1: Father's Position

[223] Father says that his income for child support purposes should be based on the Report prepared by Steve Ranot (Ranot), a partner at Marmer Penner Inc. (Marmer Penner)

[224] Marmer Penner is company of litigation accountants which is in the business of conducting business valuations and income determinations, almost exclusively in the context of matrimonial litigation.

[225] Ranot was qualified as an expert in this trial for the purpose of expressing an opinion with respect to the father's income for child support purposes. In or about 2018, the father's then-counsel retained Ranot to investigate and prepare a Report setting out calculations of father's income for the years 2015 to 2017, to be used in assessing father's child support obligations pursuant to the Child Support Guidelines (Guidelines).

[226] Ranot prepared his Report and submitted it to father's counsel in or around June 2018. That Report was made an exhibit in this trial.

[227] Ranot testified at trial and he was cross-examined.

[228] Ranot concluded that for the three-years, 2015 to 2017, father's income for child support purposes was as follows:

• 2015 - $160,000
• 2016 - $89,000
• 2017 - $69,000

[229] These were grossed-up amounts to take into account that father's actual income is not taxable in Qatar.

[230] On August 6, 2019, just prior to the start of this trial, father filed an updated Form 13 sworn Financial Statement in which he deposed that both his current income, as well as his last year's income (2018) was $69,000 "per income valuation of Marmer Penner".

[231] Now, father asks that the court's determination of his income be made in accordance with that sworn Financial Statement.

5.2: Mother's Position

[232] Mother asks the court to find that father's income for child support purposes be imputed to him in the amount of $160,000, namely, the amount of father's income for 2015, as found by Ranot.

[233] The mother says that father has failed to provide full financial disclosure and, accordingly, the court ought to draw adverse inferences against him with respect to income determination.

[234] Mother argues that if father could earn $160,000 in 2015, the court can draw an adverse inference, and conclude that he was capable of earning the same amount in the subsequent years.

5.3: The Father's Income Sources in Qatar

[235] As I noted earlier, the father moved to Qatar in 2010 to work as a gym manager. Over the next two or three years he developed his own unincorporated business training sports trainers.

[236] His business began to grow, until 2014 when he formally started his corporate business known as International Fitness Alliance (IFA). He hired a number of personnel to assist him in the administrative part of the business as well as in sales and in social media.

[237] Under Qatari law, any corporation in Qatar must be at least 51% owned by a Qatari citizen. Accordingly, the father brought another individual (Ali) into the business. Ali is a 51% shareholder and the father is a 49% shareholder.

[238] AFI pays Ali 2,000 Qatari Riyals (QR) per month to assume the role of majority shareholder.

[239] There are also other individuals involved in the organization of the company, individuals who invested start-up capital for the business.

[240] The business is set up so that the father earns a salary of 15,000 QR per month.

[241] In 2015 the father organized a separate business (EcoGYM). The idea behind this business was that it would develop into an innovative online technology related to the fitness industry which, in turn, could become a viable commercial enterprise.

[242] The Qatari Foundation (QF) offered a prize of US$100,000 to be awarded for the development of an innovative concept. EcoGYM won that prize.

[243] The expenses incurred by EcoGYM had to be strictly accounted for before QF would pay out any of the prize money. Those payouts were made on a periodic basis upon the presentation of proof of expenditures by EcoGYM or time sheets for work done by the father.

[244] Most of the prize money was paid out by QF to the father in 2015. The balance of the prize money was paid out in 2016.

[245] Unfortunately, the father was not able to turn his concept into a working online platform which would have allowed the product to gain commercial traction.

[246] As a result, after the last of the prize money was paid out in 2016, the father was left with IFA as his sole source of income.

5.4: What the Marmer Penner Income Analysis Report Reveals

[247] Ranot notes that there is a profit-sharing plan for IFA, whereby the father receives 80% of the income, as well as the monies which came from EcoGYM in the years 2015 and 2016.

[248] Ranot requested records from IFA in order to perform his analysis. He said that those records were in "poor shape by Canadian standards". He also said that in doing his analysis, he did not go behind the records themselves.

[249] In examining the IFA records, he did not "test" any of the documents for expenses which were in the 2015 to 2017 profit and loss statements. However, he did test the salary expenses.

[250] In determining the father's total income for each of the years 2015, 2016 and 2017, Ranot looked at the salary which IFA paid to the father, the monies that came to him through the EcoGYM prize, as well as any add-backs for personal expenses which the father had charged through the IFA credit card.

[251] All the monies which were paid to the father – either in QR through employment, or in US dollars by way of the EcoGYM prize money, were then converted by Ranot into Canadian dollars at prevailing conversion rates.

[252] The result of Ranot's investigation and his methodology disclosed the following incomes for the father:

• 2015 - $104,464
• 2016 - $66,172
• 2017 - $52,873

[253] However, all these amounts were received by the father on a tax-free basis. Accordingly, Ranot calculated a gross-up figure to adjust for this tax-free advantage, in accordance with the Guidelines.

[254] As I noted earlier, the resultant grossed-up income amounts for child support purposes, as required by the Guidelines were:

• 2015 - $160,000
• 2016 - $89,000
• 2017 - $69,000

[255] These are the amounts which are very much the focus of the parties' respective positions, the mother arguing that the support obligation should be based on an imputed income of $160,000, and the father arguing that the support obligation should be based on an income of $69,000, as I noted at the outset of this section of my reasons.

5.5: Imputing Income

[256] Section 19 of the Guidelines provides:

Imputing income

19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(b) the spouse is exempt from paying federal or provincial income tax;

(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

(e) the spouse's property is not reasonably utilized to generate income;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

(g) the spouse unreasonably deducts expenses from income;

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

[257] One of the purposes of imputing income is to give effect to the recognition that parents have an ongoing obligation to support their children, and to pay support based on incomes which are fairly attributable to those parents.

[258] The father acknowledges that his income from business in Qatar is tax-free. He agrees that his income should be grossed-up to account for this. He concedes that paragraphs 19(1)(b) and (h) of the Guidelines apply to his circumstances.

[259] The dispute between the parties centres primarily on paragraph 19(1)(f) of the Guidelines, namely, the mother's allegation that the father has failed to make full financial disclosure.

5.6: Has the Father Failed to Make full Financial Disclosure?

[260] Subrule 13(1) of the Family Law Rules (Rules) provides that a party in a support case shall serve and file a financial statement. Parties are expected to make complete and frank financial disclosure in their financial statements. See Khan v. Parlee, 20012 ONCJ 60.

[261] In the case of Roberts v. Roberts, 2015 ONCA 450, the Ontario Court of Appeal stated, beginning at paragraph 11:

The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing. Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled. Financial disclosure is automatic. It should not require court orders.

[262] The importance of this "fundamental principle" in the present case is the parties' awareness that determining father's income was very much a central issue in this trial, and in the proceedings leading up to trial.

[263] It was for that very reason that Marmer Penner was retained, doubtless at considerable expense, to perform an income analysis for the father.

[264] The mother argues that because Ranot did not see the documents which made up the revenue and expenses in the 2015-2017 Statements of Income for IFA, there was not true full financial disclosure. In other words, Ranot simply accepted those statements as accurate.

[265] It is correct to say that Ranot relied on the unaudited financial statements of IFA, statements which were internally prepared by the company.

[266] However, Ranot also had at his disposal a number of other company schedules which he was able to examine, including schedules of salaries paid to all employees from 2015 to 2017, schedules of remuneration paid to father by IFA from 2015 to 2017, as well as other schedules, shareholders' agreements, and other publicly-available information.

[267] Furthermore, Ranot, who described himself as "suspicious by nature" did not have his suspicions aroused, as he did not see any "smoking guns".

[268] I accept the accuracy of Ranot's conclusions, as far as they went, and certainly insofar as they concerned the income and expenses of IFA, as well as the income that was paid to the father through the EcoGYM prize money in 2015 and 2016.

[269] However, I have some difficulty with the conclusions that Ranot reached regarding other monies that were given to the father from various family members, during the years 2015 to 2017. I will return to this shortly.

[270] On June 20, 2019, the mother served the father with a Form 20: Request for Information. Specifically, in that Form the mother requested very extensive financial disclosure from the father. Without deciding the issue, a review of that Form seems to be requesting financial disclosure which could arguably be characterized as somewhat excessive, as well as some disclosure which is covered by the Marmer Penner Report.

[271] However, what is significant is that the father failed entirely to respond to that request for financial disclosure. The sole exception was that on August 6, 2019, the father swore and delivered his Form 13 Financial Statement.

[272] In that sworn Financial Statement, he stated that his current income is $69,000 "per 2017 income valuation of Marmer Penner".

[273] By simply repeating what the Marmer Penner Report concluded about his income in 2017, the father failed to comply with the requirement of subrule 13(15) of the Rules, which provides:

DUTY TO CORRECT, UPDATE DOCUMENTS

(15) As soon as a party discovers that a document that he or she has served under this rule is incorrect, incomplete or out of date, the party shall serve on the other party and, if applicable, file, a corrected, updated or new document, as the circumstances require. O. Reg. 69/15, s. 3 (14).

[274] The father testified that he was aware, even after his previous lawyer was no longer on the record as his counsel, that he had a continuing obligation to make financial disclosure.

[275] However, he said that he didn't provide any further disclosure after the Marmer Penner Report because the mother did not make any specific requests for disclosure.

[276] In other words, he placed the burden on the mother to specifically request financial disclosure rather than recognizing that the legal burden remained with himself, at all times, to provide that ongoing disclosure.

[277] He acknowledged receiving the Form 20 requesting financial disclosure on or about June 20, 2019. He was then asked why he did not make the disclosure which was requested in that Form.

[278] He replied that he consulted with unnamed counsel who advised him that the disclosure request was too extensive, and that he would be better served by simply preparing for trial.

[279] He was also asked why he did not immediately contact Marmer Penner again, requesting that an updated income analysis report be prepared prior to trial.

[280] Ranot testified that rather than making that request, the father emailed Ranot on July 11, 2019 asking about Ranot's availability for trial. Ranot testified that it was sometime after July 11, 2019 that the father asked Ranot about updating the income Report. However, by then it would have been too late to prepare a new or updating report, as Ranot testified that he would need about six weeks to do so.

[281] Had the father contacted Ranot on June 20 th, rather than waiting until sometime later in July, there would have been time for Ranot to prepare an updating report. However, father chose not to do so.

[282] Even if the counsel father contacted told father that the Form 20 Request for Information was excessive, and even if father sincerely believed that to be so, he failed to explain why he chose to make no financial disclosure whatsoever.

[283] The court is troubled by the fact that there was absolutely no financial disclosure forthcoming from father following the delivery of Ranot's Report which addressed income only up to 2017.

[284] Father cannot claim he did not understand his obligation to make ongoing financial disclosure for two reasons. First, as I noted earlier, he acknowledged that obligation in his testimony; and second, he had counsel representing him well into 2018 and even toward the end of 2018.

[285] Furthermore, in my view, it is not open to a party to fire his lawyer and then claim that he no longer has an obligation to comply with this very fundamental obligation.

[286] Had the father made a sincere effort to comply by assembling as much documentation as was within his ability, I might have taken a different view.

[287] However, the gap of time in this case for which the financial disclosure was absent is significant – all of 2018 and much of 2019.

[288] On the evidence, I am forced to conclude that the father failed in his legal obligation to make financial disclosure.

5.7: How Much Income to Impute to Father?

[289] Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and impute income to them. See Szitas v. Szitas, 2012 ONSC 1548

[290] However, the court cannot simply pick an arbitrary number and impute that amount to the support payor. The court must look at all the evidence and determine what a reasonable amount is to impute to the person who is required to pay support. See Lawson v. Lawson

[291] I start by rejecting the mother's submission that income should be imputed to the father in the amount of $160,000, that being the amount the father earned, on a grossed-up basis for 2015. The court is satisfied that the father's earnings for the year 2015 were inflated out of the ordinary due to the EcoGYM prize money awarded by the Qatari Foundation. As I noted earlier, those monies were fully paid out by 2016.

[292] There is no evidence that EcoGYM either did or could have carried on business beyond the initial concept period.

[293] I also reject the father's argument that his income for support purposes should be the amount Ranot found for 2017, namely, $69,000.

[294] As I stated earlier, the court accepts Ranot's income analysis, as far as it went. However, in two areas, the Ranot income analysis raises a red flag for the court.

[295] The first area is with respect to the father's salary from IFA.

[296] Father acknowledges that his income from IFA is 15,000 QR each month, or 180,000 QR yearly. That would convert to $64,134 (tax-free) on an annual basis.

[297] However, the tax-free income figure that Ranot arrived at for 2017 was $52,873, based on only 149,400 QR, rather than 180,000 QR. Ranot explained the difference this way. He noted that for reasons of cash flow, IFA sometimes deferred a monthly salary payment to father. But these salary payments would be made up in the following months (which sometimes spilled over into the next calendar year). In other words, Ranot was calculating father's salary from IFA based on cash received by father, rather than on an accrual basis.

[298] In fact, it was clear from the evidence that father never actually missed out in receiving his full salary, even though one or more monthly payments were deferred from time-to-time.

[299] Father was specifically asked at trial, how much money he receives each and every month as a salary from IFA. He did a quick calculation using a hand-held calculator while he was testifying, after which he replied that his monthly income, in his pocket (tax-free) is $5,485 each month, or $65,820 per year. This amount is very close to the figure which I have calculated above, namely, $64,134.

[300] In preferring a more conservative approach, I will use the lower of the two amounts, namely, $64,134 as a starting point. It is not disputed that for child support purposes, this amount must be grossed-up.

[301] The second area of concern for the court is the "other monies", which I referred to earlier in these reasons, which the father received during the years 2015 to 2017 from various family members.

[302] In his evidence at trial, Ranot said that he reviewed the father's personal bank statements for the years 2015 to 2017. The figures in those statements confirmed that the monies which IFA paid to the father were in fact paid into father's account. The statements also confirmed that the monies paid through EcoGYM to father were also paid into father's bank account.

[303] However, Ranot testified that there were certain additional deposits into father's bank account which could not be accounted for as either IFA salary or EcoGYM monies or any other documented business source.

[304] Those undocumented deposits were:

• 58,400 QR for 2015, comprised of several deposits during the year;
• 19,700 QR for 2016, comprised of two deposits during the year; and
• 75,118 QR for 2017, comprised of "quite a number of different deposits" during the year.

[305] The total of these deposits over the three-year period was 153,218 QR. The average exchange rate of QR to Canadian dollars in the years 2015, 2016 and 2017, as used by Ranot in his Report is 0.3563 QR = 1 Canadian dollar. Accordingly, when converted to Canadian dollars, those deposits totalled $54,591 for the years 2015, 2016 and 2017.

[306] In the course of conducting his analysis, Ranot questioned the father as to the source of these funds. The father advised Ranot that these deposits were "family loans".

[307] Ranot did not request, nor did father provide any documentation to substantiate the father's assertion that these deposits were family loans.

[308] Asked why he did not request documentation about these deposits, Ranot replied "I'm not going to audit every single aspect of my client's life". He stated that he had no reason to question father's statement that these deposits were family loans.

[309] For the purpose of his analysis, Ranot accepted father's statement that these various deposits were family loans.

[310] Ranot did acknowledge in his testimony that his income analysis conclusions depended upon the goodwill of the father and the father's candor in his dealings with Ranot.

[311] However, because of father's lack of financial disclosure, his candor is very much in issue insofar as his income determination is concerned.

[312] I turn to a legal analysis of the deposits which the father testified were family loans.

[313] In the case of Chao v. Chao, 2017 ONCA 701, the Court of Appeal had occasion to consider the distinction between loans and gifts. At paragraph 54 of its decision, the Chao court sets out the factors to be considered in the loan vs. gift analysis:

Here the motion judge considered factors listed as relevant in a number of cases concerning monies advanced by parents. These include the following factors identified in the context of a loan vs. gift analysis in Locke v. Locke, 2000 BCSC 1300, [2000] B.C.J. No. 1850 at para. 21, and Kuo v. Chu, 2008 BCSC 504 at para. 78, aff'd 2009 BCCA 405, 97 B.C.L.R. (4th) 203, at para. 9:

1. whether there [are] any contemporaneous documents evidencing a loan;

2. whether the manner for repayment is specified;

3. whether there is security held for the loan;

4. whether there are advances to one child and not others, or advances of unequal amounts to various children;

5. whether there has been any demand for payment before the separation of the parties;

6. whether there has been any partial repayment; and

7. whether there was any expectation, or likelihood, of repayment.

[314] Applying these criteria to the present case, there is no evidence that any of the hallmarks of a loan are present.

[315] Because these hallmarks are entirely absent, it is open to the court to draw an adverse inference against the father and conclude that these were not loans, but rather gifts.

[316] In deciding whether to draw such an adverse inference and conclude that the so-called loans were in fact gifts, the court must ask whether such a conclusion is appropriate in the circumstances.

[317] Returning to subsection 19(1) of the Guidelines:

The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

[318] It is clear from this that the list of circumstances which are included in subsection 19(1) is not exhaustive.

[319] Following that line of reasoning, the Court of Appeal in Bak v. Dobell, 2007 ONCA 304, concluded that a court has discretion to include gifts in a person's income when determining the appropriate amount of income to impute to a support payor. See also Malkov v. Stovichek-Malkov, 2017 ONSC 6822

[320] The father testified as to the high cost of exercising access when he visits the children from Qatar. For example, in 2018 his evidence was that he spent $8,000 on flights to Canada, as well as $7,500 in hotels and $4,300 in car rentals. His access costs totalled $19,800.

[321] And yet his sworn Financial Statement delivered August 6, 2019 revealed no expenses whatsoever for these access costs.

[322] The same Financial Statement, under the heading "Debts", revealed loans from relatives totaling $66,179. According to father, he was not making payment on any of those loans.

[323] In 2017, the father's evidence was that his total access costs (comprised of the same three categories as in 2018) was $8,045.

[324] His Financial Statement for 2017 reveals no access costs.

[325] Putting all this together, it does not appear anywhere that the father was actually incurring expenses out of his own pocket for access costs.

[326] In fact, when he was asked at trial how he was managing to pay for those access costs, he stated that it was through a combination of his own salary together with "bridging through family loans", loans which he stated come "sporadically".

[327] He testified that he has received loans from his family members since he was an adult. He is now 34 years old.

[328] From this, the court concludes that the monies given to the father by family members have been a regular source of income for him for a number of years.

[329] While he testified that he had repaid some of the money his brother had loaned him, he produced no evidence of any such repayment.

[330] In fact, at the outset of trial, the father had indicated that one of his witnesses would be his brother. He later decided not to have his brother testify.

[331] From all the foregoing I conclude:

(1) The monies which the father has been receiving since he was an adult are gifts rather than loans;

(2) The father is under no legal obligation to repay his family members for those monies;

(3) The gifts of income have come to the father as he has needed the income and he has used that income for whatever purposes he has determined; and

(4) Since the date of separation and, more particularly since the father has been visiting the children in Canada, he has been using the family gifts as a means of addressing his access costs.

[332] Accordingly, the court concludes that the fairest way of determining income for support purposes is to impute to the father some income based on those periodic gifts.

[333] The court must then decide how much income to impute to father from the gifts he receives.

[334] The only evidence of actual amounts the father has received was the evidence of those amounts for the years 2015 to 2017. Those amounts ranged from a low of about $7,000 in 2016, to a high of about $26,500 in 2017.

[335] Given the disparity in the annual amounts of those gifts, the court concludes that the fairest way to proceed is to take an average of the amount of those gifts over the three years from 2015 to 2017, and to add that average amount into the father's annual income, treating those amounts as income.

[336] As I noted earlier, the total of the three years of gifts from 2015 to 2017 was $54,591. The average of that three-year total is $18,197. I will round this down to $18,000.

5.8: Total income to Impute to Father and the Amount of his Support Obligation

[337] The total income is comprised of three amounts:

(1) Annual salary from IFA (as noted earlier) is $64,134 and

(2) Average annual gifts received from family members is $18,000

(3) The total amount of these two items is $82,134.

(4) As these amounts are tax-free, they must be grossed-up.

(5) According to the Divorcemate software, the grossed-up income for child support purposes is $112,542.

(6) According to the Guidelines, the table amount of support that is payable for two children is $1,624 per month.

6: ISSUE #4 – SHOULD GUIDELINE TABLE SUPPORT BE REDUCED?

[338] The father seeks a reduction in the support obligation that is otherwise provided for in the Guidelines.

[339] He argues that his high access costs ought to be taken into account in determining his obligation.

[340] He also argues that the cost of living in Qatar is unusually high.

[341] Turning first to the cost of living argument, I asked the father in his closing submissions what evidence he was relying upon to compare the cost of living in Qatar with the cost of living in Canada. He fairly acknowledged that no such evidence was introduced at trial.

[342] I turn next to the issue of the high access costs.

[343] I agree that the access costs are high, as compared to the cost of access of, for example, an access parent who lives in the same city as his children, or in a city within a relatively short driving distance.

[344] There is provision for a reduction in child support in some cases, where the access parent is incurring unusually high access costs.

[345] Section 10 of the Guidelines provides:

Undue hardship

10. (1) On the application of either spouse or an applicant under section 33 of the Act, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the parent or spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship. O. Reg. 391/97, s. 10 (1).

Circumstances that may cause undue hardship

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

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

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

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

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

(i) under the age of majority, or

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

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

(f) the parent or spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability. O. Reg. 391/97, s. 10 (2).

[346] Paragraph 10(2)(b) is the relevant portion of the Undue Hardship provision which could possibly apply in father's situation.

[347] However, a precondition to the application of paragraph 10(2)(b) is a finding by the court that the table amount of support would cause the payor to suffer "undue hardship".

[348] Section 10 of the Guidelines continues:

Standards of living must be considered

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the parent or spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other parent or spouse. O. Reg. 391/97, s. 10 (3).

Standards of living test

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II. O. Reg. 391/97, s. 10 (4).

[349] Accordingly, even if the father could establish that the payment of the monthly support otherwise required by the Guidelines would cause him undue hardship, the court cannot deviate from the table amount of support where his standard of living is higher than the mother's standard of living.

[350] In Wells v. Pollard, 2008 ONCJ 646, Justice Roselyn Zisman had to decide whether the father who lived in the United Kingdom, and who incurred travel costs to visit his children in Canada, was entitled to a reduction in his support obligation, taking into consideration his high costs of access. At paragraph 35 of her reasons, Justice Zisman stated:

In our legislation, it is only pursuant to subsection 10(1) and (2) of the Child Support Guidelines, that a parent with unusually high expenses in relation to exercising access can request a reduction in the table amount of child support. However, such an analysis requires that the payor establish that it would cause an undue hardship if the table amount of child support had to be paid. A claim of undue hardship requires a comparison of the standard of living between the mother and father's households.

[351] In Wells, the father's annual income was $160,000, whereas the annual income of the mother and her spouse was $87,000. Given that income gap Justice Zisman held that it was "extremely unlikely" that the father would be successful in establishing that his household would have a lower standard of living.

[352] In the present case, I have found the father's grossed-up annual income to be in excess of $112,000, whereas the mother's income is about $30,000, according to her Financial Statement sworn February 14, 2019.

[353] Accordingly, the father's income is more than $82,000 greater than the mother's income, a gap which is even greater than the gap in the Wells case.

[354] Furthermore, there are three persons in the mother's household (she and the twins), whereas the father has only himself to support.

[355] The standard of living precondition is a roadblock which prevents the court from making any reduction in the father's monthly support obligation.

[356] All of that aside, it is unlikely that the father's access costs travelling to Australia will exceed somewhere in the range of $12,000 to $14,000 annually.

[357] Although in absolute dollar terms, access costs of this amount may be out of the ordinary, in relative terms, even if those costs are deducted entirely from the father's income, as noted earlier, that still leaves a significant income disparity between the parties' incomes, a disparity which is decidedly in the father's favour.

[358] Finally, it is important to remember that the mother's child-related expenses continue unabated even when the father is visiting with the children. Her housing expenses, the cost of utilities, clothing, and most of the normal living expenses which are necessary to raise and care for children, continue, whether or not the father exercises his access.

[359] The only real exception to this is meals and entertainment for the children during access periods. And these kinds of expenses are almost always incurred by an access parent, whether that parent lives 50 kilometres away from his children or 10,000 kilometres away.

7: CONCLUSION

[360] Before I set out the final Order in this case, I take note of the following. First, while the father did seek travel permission with the children so that he could take them to visit the paternal family in the United Kingdom, he did not seek travel permission to any other country and, specifically, he did not seek travel to Qatar or to any country which is not a signatory to the Hague Convention.

[361] The mother did not directly oppose the father's request to travel with the children to the United Kingdom, although she was not in agreement with the father's requested timing for such travel.

[362] The father did not oppose the mother's request for certain incidents of custody, including the right to obtain and renew passports and government-related documents.

[363] The father requested a mirror Order be made by a court of competent jurisdiction in Australia. In principle, the mother did not oppose the father's request, although she did not specifically consent to this. The court concludes that the father's request is reasonable given that this court's Order would not likely be enforceable in Australia.

[364] For all the reasons set out, I make the following Orders.

Orders on Consent:

(1) The mother shall have sole final custody of the children.

(2) The father shall have direct access to information from third parties pertaining to the children's health, education and welfare.

(3) The mother's claim for spousal support is withdrawn.

Orders Not on Consent:

(1) The mother shall be at liberty to relocate with the children to Australia.

(2) Not less than 30 days prior to her relocation, the mother shall inform the father, in writing of the following:

(a) The full address where she will be living with the children in Australia together with her relevant contact information;

(b) The name and address of the school the children will be attending in Australia; and

(c) The dates of the school breaks for the children for their upcoming school year.

(3) In the event the mother does not relocate to Australia within 90 days following the date of this order, she shall forthwith notify the father in writing as soon as she becomes aware of this, so that the father can decide whether he wishes to come to Canada to exercise physical access with the children during the next 90 days.

(4) In the event the father seeks to exercise access to the children within the next 90 days, in Canada, he shall give the mother 30 days' notice of his intended travel dates to Canada, together with his access proposal.

(5) The mother shall accommodate the father's request, subject to the following.

(6) The father shall give notice in writing to the mother of the address where he will be staying while he is in Canada, as well as the father's contact information.

(7) Should father's travel to Canada permit, he shall be entitled to exercise access to the children over a consecutive 14-day period. The first seven days of his access shall be non-overnights and shall not interfere with their school hours.

(8) The father's access shall be up to eight hours on any day that he is exercising access to the children, the eight hours to fall between the hours of 10:00 a.m. and 8:00 p.m., and the father shall be responsible for picking them up at the mother's residence at the start of the access visit and returning them to her residence at the conclusion of the access visit each day.

(9) In the event the children have pre-planned extra-curricular activities, the father shall be responsible for taking the children to those activities and picking them up afterwards.

(10) The second seven-day period of access shall be overnights with the father, should the father so decide. The father shall ensure that the children have appropriate sleeping accommodations during overnight access, and he shall notify the mother in advance of the details of those accommodations.

(11) Each evening prior to the children's bedtime during the overnight access period, the father shall facilitate a telephone or Skype call between the children and the mother. The parties shall agree in advance on the timing of that contact. Failing agreement, the contact shall occur at 7:00 p.m.

(12) At any time during the overnight access period, should the children express the wish to speak with the mother, the father shall facilitate the children's contact with their mother.

(13) In the event the father's visit to Canada is less than 14 days in duration, the first seven days shall be day access only, as set out above, and the balance of the visit may be overnights should the father so decide.

(14) Whether the children are still residing in Canada, or they have re-located to Australia, the father shall be entitled to telephone/Skype access not less than twice weekly. The parents shall agree on a reasonable time for that access to occur, taking into account the time difference between Qatar (or whatever other location the father may be situated) and either Canada or Australia, as the case may be. In the event the children's circumstances change, such that the timing of the access needs to change, the mother shall notify the father in advance, preferably at least 24 hours prior to the scheduled contact, so that the parents may be able to make alternate arrangements. The mother shall make her best efforts to ensure that these contacts last for at least ten minutes. Unless the parties otherwise agree, these contacts shall not exceed one hour in duration. Apart from monitoring the duration of these contacts, the mother shall not interfere with the contacts or interrupt them in any way, unless exigent circumstances arise.

(15) Following the children's relocation to Australia, the father shall be entitled to physical access as follows:

(a) During the 2020 calendar year, he may have up to three visits, each visit not to exceed 14 days in duration.

(b) All access visits which occur in Australia and which are provided for in this Order shall be on consecutive days.

(c) For each of the father's visits to Australia, he shall notify the mother in advance where he will be staying while he is in Australia, and the relevant details of his accommodation.

(d) The visits shall occur during the children's school breaks, during March, June and two weeks of the long December break. The mother shall choose the father's two-week period for the December break and she shall give the father notice in writing of that two-week period no later than October 1, 2020.

(e) The March and June 2020 visits shall be days only for the first seven days, not to exceed eight hours a day. The second seven-day period may be overnights should the father so decide, provided however that the father has appropriate accommodations for the children and that he has conveyed all relevant details of his accommodations to the mother in advance.

(f) The father shall facilitate nightly telephone/Skype contact between the children and the mother in the same way as provided for in the paragraph of this Order pertaining to his overnight visits with the children in Canada.

(g) During the December 2020 access visit the father shall be at liberty to spend the entire 14-day period with the children on an overnight basis, provided however, that he shall facilitate reasonable telephone/Skype contact with the mother as the children may request from time-to-time during that 14-day period and, in any event, not less than one such contact daily.

(h) Commencing in 2021, the father's three two-week visits to Australia shall be such that the father is at liberty to spend the entirety of those visits with the children on an overnight basis, provided however, that he facilitates telephone/Skype contact with the mother as the children may request from time-to-time during those two-week visits and, in any event, not less than one such contact daily.

(i) Commencing in 2022, and in each year thereafter, the December access visits shall extend for a period of three consecutive weeks, during which the father is at liberty to spend all or any part of the three-week period with the children on an overnight basis. The mother shall notify the father no later than October 1, 2022, and no later than October 1st of each subsequent year of the three-week period during which access shall occur for the December access visits. During these three-week visits, the father shall facilitate telephone/Skype contact with the mother as the children may request from time-to-time.

(j) The father shall be at liberty to travel with the children to the United Kingdom to visit with the father's family for all or any part of the December 2022 three-week access period, as well as for all or any part of the subsequent December three-week access visits.

(k) The parties are at liberty to agree to different timing for the various access visits, including different timing for the visits to the United Kingdom, other than what is provided for in this Order, provided however, that any such agreement is unambiguous and set out in writing/text/email, or the like.

(16) All the in-person access visits by the father provided for in this Order, whether in Canada or in Australia, shall be the minimum visits for the father and the children. The mother and the father are at liberty to agree to such additional visits as they decide from time-to-time. The mother shall make these decisions, at the father's request, based on the best interests of the children, including the children's desire to spend additional time with the father. In the event the mother does agree to additional in-person visits, the timing, duration and any other conditions which may be attached to those visits, shall be agreed upon by the parties in writing, prior to the commencement of the visits. In the event the parties are unable to agree on the timing, duration and other conditions, the mother's decision in respect of these matters shall prevail provided that her decision is reasonable.

(17) Unless the parties otherwise agree in writing, the father shall not be permitted to travel with the children to any country other than the United Kingdom.

(18) To facilitate travel to the United Kingdom for the children, the mother shall give the children's passports to the father not less than 24 hours prior to the intended travel date. Forthwith upon the children's return to Australia the father shall return the children's passports to the mother.

(19) The mother shall be permitted to travel with the children without the father's consent, whether within Australia or internationally, provided however that her travel does not conflict with the father's access visits as set out in this Order.

(20) The mother shall be at liberty to obtain and renew all relevant passports and government-related documents for the children without the father's consent.

(21) Within 45 days of arriving in Australia, the mother shall commence proceedings in a court of competent jurisdiction in Australia to seek an Order mirroring the still-applicable terms of this Order. The father shall not contest the proceedings in Australia so long as the Order sought is in compliance with this Order. The Order sought shall be final and shall be delivered to the father forthwith on issuance. The Australian court Order should specify that the appropriate Australian authorities are entitled to enforce the terms of the Order.

(22) Should the mother at any time decide to relocate with the children outside of Australia, she shall give the father notice in writing not less than 60 days prior to the date of her intended move.

(23) The father shall pay child support to the mother in the amount of $1,624 per month, for two children, based on imputed income to him in the amount of $112,542 annually, support to commence August 1, 2016, with credit to the father for amounts paid by him since August 1, 2016, as disclosed by records maintained by the Family Responsibility Office (FRO).

(24) Arrears of support owing by the father resulting from this Order shall be paid by the father to the mother at the rate of not less than $500 per month, commencing October 1, 2019, until the arrears are fully paid.

(25) Within 30 days following the date of this Order, the father shall open an account at a financial institution in Ontario. He shall make all support payments required by this Order, including arrears of support, into that account and he shall give the details of that account to the FRO so that FRO may enforce this Order through the father's Ontario financial institution account.

[367] I recognize that the various terms of this Order will necessarily require some level of cooperation and communication between the parties, even though I have attempted as much as possible to minimize the open-endedness of those terms. I also recognize that both parents may be somewhat dissatisfied with certain aspects of this Order. That said, the court encourages them both to engage with one another in a flexible and respectful manner. This will minimize the likelihood that the children become caught up in ongoing conflict between the parties.

[368] Attached to these reasons as an Appendix, is the Divorcemate calculation page which inputs the father's actual income as found in these reasons. The calculation discloses the grossed-up amount for child support purposes.

[369] If either party finds a mathematical error in this decision, or an inputting error in the Divorcemate software calculations attached to this decision, they may serve and file written submissions by September 13, 2019. The other party will then have until September 23, 2019 to serve and file a written response. Submissions are to be limited to issues with the software calculations or other mathematical errors – nothing else. Any submissions should be delivered to the trial coordinator's office on the second floor of the courthouse. The father is at liberty to email his submission to mother's counsel and to the trial coordinator, which email shall be accompanied by a copy of this paragraph in my reasons.

[370] Should the mother seek her costs of this proceeding she shall file her written submissions at the trial coordinators' office no later than 21 days following the date of this judgment (or 21 days following the court's response to submissions regarding software or mathematical errors). The father shall have 14 days thereafter to file responding submissions. In the case of the father, his submissions may be served and filed by email. No reply submissions will be permitted. Submissions by both parties shall not exceed three pages, in 12-point font, double-spaced, exclusive of attachments including any Bill of Costs and authorities relied upon.

Released: August 29, 2019

Signed: Justice Robert J. Spence