Court File and Parties

Date: July 24, 2020

Court File No.: D30040/19

Ontario Court of Justice

Between:

D.M.M.D. Katie Gaboury, for the Applicant

Applicant

- and -

J.W. Ysamin McGann, for the Respondent

Respondent

Heard: July 21-22, 2020

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] This trial was about the parenting and child support arrangements for the parties' four-year-old daughter (the child).

[2] The child has been rotating weekly between the parents' residences since July 25, 2019.

[3] It is expected that the child will start school on a full-time basis in September 2020. The problem is that the applicant (the father) now lives in Woodbridge Ontario and the respondent (the mother) lives in Oakville, Ontario. They both agree that they live too far apart to continue the existing parenting arrangement. They cannot agree on a new parenting plan.

[4] The parties both sought custody of the child, specified parenting time for the other parent and child support.

[5] The parties reached an agreement just prior to closing submissions on what parenting order should be made if the other parent is awarded custody of the child. The only parenting issue not agreed to was mid-week access. The father submits that the non-custodial parent should have one mid-week overnight visit each week. The mother submits that it should be an evening visit each week and take place near the custodial parent's home.

[6] The parties' agreement provides for generous parenting time for the non-custodial parent. The terms of that agreement will be incorporated into the final order.

[7] Neither party sought an order for joint custody or parallel parenting due to their poor level of communication. They agreed that the child should primarily live with the parent who is granted custody.

[8] The father seeks child support from the mother to start on September 1, 2020. He sought to impute her annual income at minimum wage ($29,120) for the purpose of the support calculation. The mother is content with this imputation of income if the father is granted custody of the child.

[9] The mother also seeks child support from the father starting on September 1, 2020. She seeks to impute his annual income at $34,000 for support purposes. The father proposes paying child support based on an imputed minimum wage income if the mother obtains a custody order.

[10] The parties agreed to a focused trial of these issues. They each testified. The father called his common-law partner (A.L.). The mother called her mother (the maternal grandmother). Every witness was cross-examined.

[11] The remaining issues for the court to determine are:

a) What custody order is in the child's best interests?

b) What mid-week parenting time order is in the child's best interests?

c) What child support should be ordered?

Part Two – Background Facts

[12] The father is 33 years old. The mother is 32 years old.

[13] The father presently lives with A.L. and A.L.'s six-year-old son in Woodbridge.

[14] The mother lives with her 13-year-old daughter from another relationship in Oakville.

[15] The parties began their relationship in 2014. They started living together in Oakville in April 2015 and had the one child together. They resided in Oakville until April 2017 when the father moved into his mother's (the paternal grandmother's) home in Toronto.

[16] The parties briefly reconciled in Oakville in November 2017. The father then returned to live with the paternal grandmother in Toronto.

[17] The parties disagree on who had primary care of the child after the attempted reconciliation.

[18] The child attended a daycare in Oakville starting in December 2017. She attended there until January 2019.

[19] On January 17, 2019, the father issued his application for custody and child support.

[20] In February 2019, the child started attending a Montessori school in Oakville.

[21] On July 25, 2019, Justice Melanie Sager made a temporary parenting order, on consent, that the child rotate spending one week with each parent.

[22] The child stopped attending the Montessori school in Oakville at the end of 2019 because the mother lost her government subsidy.

[23] In January 2020, the father enrolled the child in a Montessori school in Woodbridge during the weeks that she spent with him. This ended in the middle of March 2020 due to the COVID-19 pandemic (the pandemic).

[24] On January 9, 2020, Justice Sager made a temporary order addressing parenting exchanges and communication. She designated who could exchange the child and ordered that the parties should only communicate by email unless there was an emergency.

[25] On February 25, 2020, Justice Sager made an order changing the access exchange locations.

[26] The father deposed that he has been in his relationship with A.L. since July 2017. He said that they moved into their current home together in Woodbridge in September 2019.

[27] The father testified that he has been self-employed as an independent contractor installing appliances since the middle of 2019. He works for one customer. He said that he has not worked at this job since the pandemic began. The father said that he also works part-time in a shoe store and recently returned to work there – working about 8 hours each week. The father said that he received CERB benefits through July 2020. He hopes to return to his installation work soon - it depends on the pandemic.

[28] A.L. operates a hair salon from her home in Woodbridge. She has not worked since the pandemic began and presently receives CERB benefits. She deposed that she earns annual income of about $35,000 when she is working.

[29] The mother was employed full-time at an alarm monitoring company until October 2019. She is presently receiving Employment Insurance. She said that she obtained a paralegal certificate from Sheridan College in 2018 and hopes to obtain work in that field once this case is decided.

Part Three – Parenting

3.1 Preliminary Comments

[30] It is unfortunate that this case went to trial. The parties are both competent and committed parents who love their child very much. If the parties resided closer together, an equal-parenting plan could have continued.

[31] The parties spent little of their focus at trial on the child. Instead, they were primarily focused on the flaws of the other. This set up a win/lose mentality – a mentality, if it continues, that will make the child's life very difficult.

[32] At the conclusion of submissions, the court told the parties that they have many positive qualities, but they need to better support each other moving forward. The result of this trial will not be the reason why the child does or does not reach her potential – both parents will have very generous parenting time with the child. The child's future will likely be much more dependent on how well the parents are able to protect her from parental conflict.

3.2 Legal Considerations

[33] Subsection 24 (1) of the Children's Law Reform Act (the Act) provides that the merits of a custody or access application shall be determined on the basis of the best interests of the child.

[34] Subsection 24 (2) of the Act sets out eight considerations for the court to consider in making the best interests determination. No one factor has greater weight than the other, nor is one factor particularly determinative of the issue before the court. See: Libbus v. Libbus, [2008] O.J. No. 4148 (Ont. SCJ). The court must also consider subsection 24 (3) of the Act that deals with past conduct relevant to parenting and subsection 24 (4) of the Act that deals with violence and abuse.

[35] A child should have maximum contact with both parents if it is consistent with the child's best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27.

3.3 Positions of the Parties

[36] Both parties believe that it is in the child's best interests for the court to grant them custody of the child.

[37] Both parties claim to have been the child's primary caregiver prior to their consent to a week-about parenting plan on July 25, 2019.

[38] The father submitted that his plan is in the child's best interests because:

a) He has been the primary parent for the child and the more stable caregiver.

b) He and A.L. pay more attention to the child than the mother does.

c) He and A.L. have more flexibility in their schedules to care for the child than the mother does.

d) He has better accommodation for the child than the mother does.

e) He and A.L. are more financially stable than the mother.

f) He has a better plan for the child's schooling than the mother does.

g) The child has a mother/child relationship with A.L. The child also has a sibling type relationship with A.L.'s son, that he says is closer than the child's relationship with the mother's daughter.

[39] The father testified that he had the following concerns about the mother:

a) She had sporadic contact with the child from February 2018 until January 2019. He said that she saw the child only once or twice each month.

b) She passes off care of the child to the maternal grandmother and to other relatives.

c) The child is hard to settle down after spending her weeks with the mother. He said that the child has tantrums and doesn't follow bedtime routines.

d) She has not been following pandemic health protocols.

e) She has had minimal involvement with the child's daycare providers and the child's doctor.

f) She is unfairly trying to portray him as a drug user and as a violent abuser.

g) She has accumulated over $34,000 in unpaid driving fines.

h) She was convicted of driving under the influence in November 2019 and had her driver's licence suspended for six months.

[40] The mother submitted that her plan is in the child's best interests because:

a) The child has always lived with her in Oakville.

b) She has always been the child's primary caregiver.

c) She has been the more stable parent who has looked after the child's needs.

d) She has been the parent to choose the child's doctors and daycares and has done so in a responsible manner.

e) The child has always attended daycare in Oakville.

f) The child's doctor and dentist are in Oakville.

g) She has a better plan than the father does for the child's schooling.

h) The child has a very close bond with her sister.

i) She has extensive family and supports in Oakville. The child is an integral part of the extended family.

[41] The mother testified that she had the following concerns about the father:

a) He has a history of showing very poor judgment.

b) He has a history of using and dealing drugs.

c) Until mid-2019, the father had not seriously pursued honest work.

d) He was violent to her during their relationship and angers easily. She described how he assaulted her when she was pregnant and how, in March 2017, he violently assaulted her in front of her children; he choked her, put holes in the walls of her apartment and broke her fridge. She said that he hit her in November 2017, as a result of which she had to get 5 stitches over her eye.

e) He was possessive, jealous and harassed her. She described how he stalked her in 2017 following her to work and calling her multiple times each day. Once, she said, he disconnected the wires in her car.

f) She questions the stability of his relationship with A.L.

g) She worries whether he is properly following pandemic health protocols. She did not believe that he adequately responded to her request asking how he is following those protocols.

h) The child has difficulty with her behaviour after spending her weeks with him.

i) He can be dismissive of the child's issues with eczema and constipation.

3.4 Credibility

[42] For the most part, the court found the mother to be a credible witness.

[43] The mother directly answered questions. Her evidence was consistent. She often had documentation to support her testimony.

[44] However, the court finds that the mother tended to minimize the amount of time the father spent with the child and finds that he spent more time with the child than she stated. The mother was very busy from the fall of 2016 until the end of 2018. She was attending college and working full-time. The father spent considerable time caring for the child. He did most of the exchanges from the child's daycare – coming all the way from Toronto to Oakville to do so.

[45] The court also finds that the mother tended to downplay the importance of the child's relationships with A.L. and A.L.'s son. The court finds that these are close and important relationships for the child.

[46] However, the court had far more concerns about the father's credibility. He often failed to directly answer difficult questions. His evidence would shift when faced with contradictions, sometimes resulting in his evidence making little sense. At other times, his evidence was clearly not true.

[47] Examples of this are as follows:

a) The father claimed that his only criminal record was for possession of marijuana in 2009. In fact, he was convicted of trafficking drugs in 2013 and was incarcerated for several months.

b) The father claimed that the parties separated in April 2017 due to the mother's infidelity. The mother said that they separated due to a serious incident that took place in January 2017. The father was stopped by the police with the child in the car. When asked to get out of the car, the father fled, abandoning the child (then 11 months old). He said that he was afraid of the police because of the way they were speaking to him and because he was in possession of marijuana. The father was charged with escape lawful custody, abandoning a child, possession of a schedule 2 drug, failure to ensure an infant was properly secured and driving without a licence. The father deposed that these criminal charges were withdrawn in the summer of 2017.[1]

The Children's Aid Society was subsequently called and required clean drug tests from the father. The mother said that she had been instructed by Children's Aid not to leave the father alone with the child. She said that she became upset when the father continued to consume large quantities of marijuana and failed the first two drug tests (the father denies failing these tests).[2] She said that the father passed the final test and that Children's Aid closed its file in March 2017.

The mother said it was the father's conduct and her loss of trust in him that caused their separation.[3] The court found the mother's version of events to be much more credible to explain the reasons for their separation.

c) The father testified that he never followed the mother, as she alleged. This contradicted his trial affidavit where he gave excuses for following her around in April 2017.

d) The father's evidence about the time he spent with the child in 2017 kept shifting. He testified that in the summer, the parties tried equal parenting. In his trial affidavit, he said that this started in April 2017. He makes reference in another affidavit to negotiating this arrangement in October 2017. He first testified at trial that the equal parenting arrangement lasted for 3 months. Then he changed it to 1 to 3 months – after which time the child was with him 90% of the time.

e) The father stated that the child was with him 90% of the time from February 2018 until January 2019. He changed that at one point to the child being with him the majority of the time. The mother produced a series of texts between the parties from 2018 showing that she was spending much more time with the child than the father stated.

f) The father complained about the mother not giving him documentation for the child. He said that he was involved in a car accident in 2018. The child was in the car with him. He claimed that he couldn't take the child to the hospital because of this lack of documentation. When challenged about not looking after the medical needs of the child, he claimed to have taken the child to a walk-in clinic. If he did, it made no sense that he couldn't have gone to the hospital because of a lack of documentation.

g) The father claimed that the mother changed the child's daycare in retaliation to his starting this application. He also claimed that the mother never consulted him about this change. However, the mother produced a text exchange showing that she informed the father of the change early in December 2018 (the month before the application) and confirmed in the text their mutual dissatisfaction with the daycare that they moved the child from.

h) The father claimed that he was forced to enter into an equal-time parenting plan in July 2019, because he had his back to the wall. He could not explain why this was the case.

i) The father sought to establish that he was more financially secure than the mother. However, his evidence about his income and expenses didn't make sense. He and his partner are paying $2,700 per month for rent. They also have to pay for utilities, vehicle expenses and other monthly expenses for themselves and two children. The father testified that he incurred no debt nor obtained loans or gifts to support this lifestyle. However, the father claimed to have annual income of about $17,000 and A.L. testified that she earned $35,000 annually before the pandemic. A.L. also testified that she had no debts and had not been lent money. Their purported joint incomes didn't come close to supporting their lifestyle. A.L. testified that her parents were giving her about $1,000 each month (once it was apparent during her examination that the numbers didn't add up). This still didn't support their lifestyle. This disconnect in their evidence also adversely affected A.L.'s credibility.

[48] Where there was a conflict in their evidence, the court generally preferred the evidence of the mother to that of the father and A.L.

[49] The court makes the following findings of contested material facts:

a) The mother was the child's primary caregiver after the child was born.

b) Once the mother ended her maternity leave in September 2016, the parties shared parenting responsibilities.

c) After the incident where the father abandoned the child in the car in January 2017, the mother again primarily cared for the child.

d) The incidents of domestic violence described by the mother took place.

e) The child primarily lived with the mother from April 2017 until the attempted reconciliation in November 2017, with the father spending increasing time with the child.

f) The parents shared parenting of the child after November 2017. The child might have spent slightly more time with the mother, but not to the extent that it was a significant consideration.

g) The father has a history of drug use and dealing drugs. The level of his current drug involvement remains unclear.

h) The mother obtains parenting assistance from her family when she is working. She does not "pass off" the child as alleged by the father. She is a committed parent who makes responsible child care arrangements.

i) Both parents have been equally involved with the child's doctor. The mother has taken the child to all dental appointments.

j) Both parents have been very involved with the child's daycare providers. The father did most of the exchanges with the daycare in 2018.

k) The court is satisfied that both parents are responsibly following pandemic health protocols based on their evidence of compliance. They each led evidence of alleged breach of health protocols by the other. However, they each satisfactorily explained the alleged breaches.

The court is also satisfied that the father adequately responded to the mother's request to explain how he is following pandemic protocols. She made a written request on March 28, 2020. He chose to have his lawyer respond on April 3, 2020. The response was appropriate.

In Johnson v. Johnson, 2020 ONSC 2896, in commenting about the challenges parents face in making health and safety decisions for their children during the pandemic, Justice Alex Pazaratz wrote that once it finds that both parents fall into the category of "loving, caring, responsible, safety-conscious parents", it is unnecessary – and inappropriate – for judges to conduct a microscopic analysis of every single decision each parent makes.

l) The father has a stable relationship with A.L.

m) The child has close bonds with A.L., her son and the mother's older daughter.

n) The father and A.L. are responsibly addressing the child's eczema and constipation issues.

o) The mother's outstanding fines are not relevant to the parenting issues. She incurred them when she didn't attend court when she was 19 years old for driving without insurance. The father also has a record of having his driver's licence suspended for unpaid fines. This is also not relevant to his parenting.

3.5 Custody Analysis

[50] The court considered the relevant factors set out in subsections 24 (2) (3) and (4) of the Act as set out below.

3.5.1 The Child's Relationships with Each Person Claiming Custody and Persons Involved in the Child's Care and Upbringing

[51] The child has spent equal time with the parents for over two years. She loves both of them and is comfortable in both of their homes. There was no evidence that she is closer with one parent than the other. Both parents are equally committed to the child. The court is very impressed that the father frequently drove from Toronto to Oakville to drop off and pick up the child from daycare.

[52] The child has close relationships with the mother's older daughter and with A.L.'s son, who is closer in age to her.

[53] The child has a close relationship with A.L. The child also has positive relationships with the mother's extended family, including the maternal grandmother, her aunts and cousins - most of whom live in Oakville.

[54] This factor does not favour either party.

3.5.2 Views and Wishes of the Child

[55] The child is too young to ascertain her views and wishes.

3.5.3 Stability Factors

[56] The mother has had a stable home in Oakville. The mother has always lived there with the child. The father moved to the paternal grandmother's home after the parties separated and now lives with A.L. in Woodbridge. It appears to be a stable home. Both homes are suitable for the child. This factor favours neither party.

[57] The child's doctor and dentist are in Oakville. She has attended daycare in Oakville. This stability factor slightly favours the mother.

[58] The mother has always been economically self-sufficient. The father has been financially reliant on other people. This stability factor favours the mother.

3.5.4 Ability and Plans of the Parents to Meet the Child's Needs

[59] The parents have established that they are both capable of looking after the basic needs of the child. The child has no special needs and appears to be developing normally.

[60] Both parties have suitable plans to have the child participate in extra-curricular activities.

[61] The father has A.L. available to assist him with child care. The maternal grandmother has assisted the mother in the past and is still available to help her. However, due to health issues, she said that she can only care for the child for 2 to 3 hours each day. The mother also has extended family in Oakville who have assisted her with the child in the past. The father did not provide evidence of anyone else who can assist him with child care. This factor – parenting supports – slightly favours the father.

[62] The father submitted that he and A.L. have more flexibility in their work hours than the mother to care for the child. This might have been true in 2019 when the mother worked 12 hour shifts, but she no longer works at this job. At this point, the mother is not working and is at home full time. She has indicated that she will seek employment that will permit her to maximize her ability to care for the child. The court finds that this factor does not favour either party.

[63] The court also accepts the mother's evidence that the father's "work flexibility" has often been due to his disinclination to seek work. His income tax returns prior to 2019, filed with the court, showed negligible income. In 2019, he declared income of under $17,000.[4] The mother went to school, worked full-time and for some periods was also the child's primary caregiver. Until recently, she had worked consistently for many years and is motivated to improve her income earning ability. The father has historically been reliant on the mother, the paternal grandmother and A.L. to financially support him and the child. This factor – the ability of a parent to financially meet the child's needs, favours the mother.

3.5.5 Plan for Schooling

[64] The parties both testified that, all other things being equal, they feel a French Immersion education is in the child's best interests.

[65] The mother's plan is to have the child attend kindergarten for two years at a public school, and then switch her to a French Immersion school in grade one. Both schools are near her home in Oakville. Her older daughter speaks French and will be able to assist with the child.

[66] The mother attached Fraser Institute rankings to her affidavit in support of her submission that her choice of school should be preferred because it was ranked higher than the school proposed by the father.

[67] The court advised the parties that it wouldn't place any weight on the Fraser Institute rankings. Courts are consistently not relying on them. See: Wilson v. Wilson, 2015 ONSC 479; Hassan v. Jones, 2020 ONSC 4007; Burke v. Bouzanne, 2020 ONSC 3336; Anderson v. McIntosh-Anderson, 2018 ONSC 4688. These decisions offer several reasons for excluding this evidence including:

a) This is opinion evidence and should be introduced through an expert.

b) This is hearsay evidence being introduced for the truth of its contents. There is no opportunity to cross-examine anyone at the Fraser Institute as to how the data was created or collected or how the criteria or data was applied to reach its results.

c) Rankings cannot provide information on the complex range of variables that parents face when selecting appropriate schools for their children.

d) There are factors other than the academic superiority of a school that must be considered in determining what school would be in the best interests of a child to attend. The school that will give the child the greatest competitive advantage, or provide the greatest confidence or motivation, or that will best facilitate the child's relationship with others, including parents and classmates, or best promote all-around development, may be in the child's best interests even though there is a school that is ranked higher academically.

[68] Therefore, the rankings, absent a complete context and explanation for them, are of no assistance to courts.

[69] The father said that he plans to have the child attend a public school in Woodbridge. It is the same school that A.L.'s son goes to and the children can take the school bus together. He testified that the child will begin taking French at this school in grade one. However, A.L. testified that French is not available at that school until grade 2.

[70] The court finds that both schools are suitable for the child. However, the mother's plan provides the child with the French Immersion education that the parents feel is in the child's best interests. The court weighed this against the advantages to the child attending school with A.L.'s son and not having to change school after kindergarten. Overall, the mother's schooling plan is slightly more favourable.

3.5.6 Parenting Judgment and Maturity

[71] This factor was the clearest area of difference between the parties. It is a critical factor in determining the child's best interests as the person who is granted custody will be the person responsible for making major decisions for the child.

[72] The court finds that the mother has been the parent who has made most of the major decisions for the child and that she has done so in a responsible manner.

[73] The mother is the parent who researched and arranged for a pediatrician and dentist for the child. She chose the child's first daycare and made the decision to change the daycare after consulting the father.

[74] The father has generally deferred to the mother in making these decisions.[5] He claims that he did this because he did not have the child's government documents. However, he has been in litigation since January 2019. He has never sought this documentation through the court process.

[75] The court accepts the mother's evidence that she has solely made the decisions for her older daughter and that that child is thriving in her care.

[76] The mother has consistently exercised good judgment in caring for the child. The court is confident that she will continue to do so.

[77] The text messages filed by the parties demonstrate that the mother attempts to responsibly communicate with the father.

[78] The mother demonstrated poor judgment drinking and driving in 2018. At trial, she did not try to rationalize this conduct, said that she was "not very proud" of this incident and that she has learned from it.

[79] The evidence raised concerns about the father's judgment and maturity and how it affects the best interests of the child.

[80] The incident in January 2017 where the father fled from the police while the child was in the car is very concerning. The court appreciates that the father, as a Black man, might have felt intimidated and scared during the police encounter. However, his instinct to flee the scene and abandon the child demonstrated terrible judgment.

[81] Also concerning was the father's justification at trial for leaving the child in the car. He testified that he wasn't "leaving the child with a crazy person" and felt that the child would be safe with the police – the same police he was fleeing from. The father said that he panicked.

[82] This wasn't the only incident where the father said that he panicked in a stressful situation involving the child. He said he panicked when he was in a car accident with the child in 2018. The child was crying after the accident and he was worried that she was hurt. He claimed that he didn't take her to the hospital because the mother had the child's documentation and wasn't available.[6]

[83] The ability to make sound parenting judgments in stressful situations is an important component of parenting. The father has not performed well in these situations.

[84] The evidence also showed that when the father becomes frustrated, he often responds in an immature manner. At times, he has become violent.

[85] The court accepts the mother's evidence about the father's domestic violence towards her during their relationship.

[86] The text messages filed show that when frustrated, the father reacts at times with abusive profanity to the mother. This supported her allegations of violence.

[87] The evidence also indicated that the father sometimes becomes petulant when he doesn't get his own way. He has told the mother on occasion, when upset with her, that he will stop seeing the child as much. The father testified that he never meant this or followed through on these statements – he was just frustrated.

[88] Unlike the mother, the father was hesitant to take responsibility for his negative conduct. The furthest he would go was to describe abandoning the child in 2017 as a mistake – a mistake that took place three years ago and which shouldn't be held against him. This inability to take responsibility for his actions is further evidence of immaturity.

[89] The court has set out its concerns about the father's credibility in paragraph 47 above. These credibility issues make it difficult for the court to trust him to responsibly make the major decisions for the child.

[90] The court has far more confidence in the mother than the father to exercise mature judgment in making major decisions for the child.

3.5.7 Custody Decision

[91] Balancing all of these considerations, the court finds that it is in the child's best interests to grant custody and primary residence of the child to the mother.

3.6 Weekday Access

[92] The remaining parenting issue in dispute is whether the father should have a mid-week overnight visit with the child each week, or whether it should be a weekly evening visit to take place in Oakville.

[93] The court has considered the factors set out in subsection 3.5 above in making this decision.

[94] The court has also considered that both parties said that the child struggles with the transitions between the households – she is difficult to settle and has more tantrums.

[95] At this stage, the court finds that it is in the child's best interests to have a stable routine during the school week. An overnight mid-week visit will disrupt that routine. The child will need to do a lot of traveling in a short period of time that might be tiring for her.

[96] However, once the child adjusts to this new parenting arrangement and to attending school full-time, it is in her best interests to spend more time with the father. A weekday overnight visit will also allow him to have more connection with the child's school. The court is confident that he will deliver the child to school on time as he has shown that he has done this with her daycare in the past.

[97] The court will make the mid-week order sought by the mother while the child is in junior kindergarten. Starting in September 2021, the father will have a mid-week overnight visit with the child in alternate weeks. In the other weeks, the evening visits will continue.

Part Four – Child Support

[98] The mother asks that the father pay child support of $292 each month, starting on September 1, 2020. This is the Child Support Guidelines (the guidelines) table amount for one child, based on an annual income of $34,000. The mother asks the court to impute this income to the father.

[99] The father proposes to pay child support of $248 each month, based on a minimum wage annual income of $29,120.

[100] The father submitted that he had expected to make $34,000 in 2020, except for the intervening pandemic.

[101] Support payors have an obligation to earn what they are capable of earning to support their children. If they fail to do so, the court may impute to them the income that they are capable of earning for support purposes. See: Drygala v. Pauli, [2002] O.J. No. 3731 (OCA).

[102] The court accepts that the pandemic has adversely affected the father's ability to earn income in 2020 and will make the support order sought by the father for the remainder of 2020.

[103] The court expects the father to earn, starting in 2021, the income he expected to make in 2020. The father testified that he expects to resume his appliance installation business soon. He is paid $17 an hour as an installer. He just started working part-time at the shoe store.

[104] The court also strongly suspects that the father has additional sources of undeclared income as his explanations of how he and A.L. are paying their expenses don't add up. Lifestyle can be the basis of imputing income to a payor. See: Aitken v. Aitken, [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas, [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373.

[105] The court will order the child support amount sought by the mother starting on January 1, 2021.

Part Five – Conclusion

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

a) The mother shall have custody and primary residence of the child. She shall consult with the father before making any non-emergency major decisions regarding the child.

b) The father shall have access to the child on three out of four weekends each month, from Friday after school to Sunday at 7:00 p.m. Access shall be extended to include Friday and/or Monday if the weekend includes a holiday or Professional Development (P.D.) day, commencing September 11, 2020.

c) Starting in September 2020, the father shall have a mid-week visit with the child each week (on Wednesday, if the parties cannot agree to another day), from after school to 7:30 p.m. The visits shall take place in the Oakville region. Starting in September 2021, the weekly mid-week visits shall continue and in alternate weeks, the visit shall extend until the father returns the child to school the following morning. The overnight visits are not restricted to the Oakville region.

d) The parties shall share the summer holiday equally, on a week about schedule, with the father having the first week of summer in even numbered years, and the second week of summer in odd numbered years.

e) Christmas holiday shall be shared equally, with exchanges taking place at the halfway mark. The father shall have the second half of Christmas in even numbered years, and the first half in odd numbered years.

f) For March break, the mother shall have the child for the full March break in even years, and the father shall have the full March break in odd years.

g) Mother's Day and Father's Day shall be spent with the respective parent from 9:00 a.m. to 7:00 p.m. regardless of which parent has regular access on that day, unless otherwise agreed upon by the parties.

h) The father shall have further and additional access as the parties may agree upon.

i) The holiday parenting schedule shall take priority to the regular parenting schedule.

j) Exchanges shall take place directly at school. If the child is not in school, the father shall pick up the child from the mother's residence, or another location as agreed upon in writing.

k) Each parent shall be permitted to telephone the child every day while the child is in the other parent's care. This telephone call is limited to 15 minutes. Telephone calls shall take place at 7:45 p.m., or a time as otherwise agreed upon between parties.

l) Communication between parties shall be via text message or email.

m) The mother may apply for the child's government documents and renewals, including passports, without the signature of the father. The father shall be provided a notarized copy of each document when it becomes available. If the father requires the original document, he may request the same and the document shall be provided to him at the next access exchange. The father shall return the document at the next exchange after use.

n) Either party shall be permitted to travel with the child, for up to 7 days, on 30 days notice to the other parent, wherever possible. The traveling party shall provide a detailed itinerary with flight information, hotel location and emergency contact to the remaining party. Both parties agree to either have a phone plan or internet access during the entirety of the trip.

o) Starting on September 1, 2020, based on an annual income of $29,120, the father shall pay child support to the mother of $248 each month, this being the guidelines table amount for one child.

p) Starting on January 1, 2021, based on an imputed annual income of $34,000, the father shall pay child support to the mother of $292 each month, this being the guidelines table amount for one child.

q) The father shall provide the mother with complete copies of his personal and corporate tax returns and notices of assessment by June 30th each year.

r) A support deduction order shall issue.

[107] If either party seeks their costs, they shall serve and file their written costs submissions by August 5, 2020. The other party will have until August 14, 2020 to respond (not to make their own costs submissions). The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator's office on the second floor of the courthouse.

[108] The court thanks counsel for their professional presentation of this case.

Released: July 24, 2020

Justice S.B. Sherr

Footnotes

[1] No documentary evidence was provided to confirm this.

[2] Neither party provided documentary evidence about these tests. This would have been helpful.

[3] The mother introduced this evidence through a Crown synopsis prepared in the father's criminal case. The synopsis is not a proper business record, either under section 35 of the Evidence Act or through the common-law business record exception, as it is a synopsis of events - its contents were not prepared contemporaneously with the events observed. Further, there is no indication if the writer of the report is the same person who observed the events. See: Catholic Children's Aid Society of Toronto v. L. (Jean) and R. (Willard) (No. 3), [2003] O.J. No. 1722 (Ont. C.J.); Children's Aid Society of Toronto v. L.L., 2010 ONCJ 48. The court only relied on the facts that the father admitted to in the synopsis – having fled from the police and leaving the child in the car, having been in possession of marijuana and having been charged with the offences set out in the synopsis. The court did not rely on other statements contained in the synopsis for the truth of their contents – specifically, that the child was not properly secured in the car or that the father was driving with a suspended licence, as he denied those facts. However, those facts were admissible for the purpose of helping explain why the mother felt that she could no longer trust the father and why she separated from him.

[4] He also received additional public assistance of about $6,000.

[5] The father did make the choice of enrolling the child in a Montessori daycare during the weeks he had the child for two months in 2020.

[6] As previously noted, the father said that he took the child to a walk-in clinic.