ONTARIO COURT OF JUSTICE

CITATION: Lindeman v. Desloges, 2021 ONCJ 10

DATE: January 6, 2021

COURT FILE No.: Toronto D31277/19

BETWEEN:

BRITTANY LINDEMAN

Applicant

— AND —

MARK DESLOGES

Respondent

Before Justice Roselyn Zisman

Heard on December 7 to 11, 2020

Reasons for Judgment released on January 6, 2021

Marlene Kazman............................................................................ counsel for the applicant

Pamila Bhardwaj....................................................................... counsel for the respondent

Reasons for Decision

Zisman, J.:

1. Introduction

[1] This trial involved the parenting arrangements for the child Miesha Belle Desloges born […], 2016, child and spousal support and the issue of the Respondent’s desire to move the child’s residence out of Toronto.

[2] The child was in the primary care of the Applicant (mother) since her birth.

[3] On September 29, 2019 the parties fought and the mother was charged with assaulting the Respondent (father). As of that date the child has remained in the primary care of the father.

[4] Presently the child spends every Tuesday from 2:00 p.m. to Wednesday at 8:00 p.m. and every Saturday from 2:00 p.m. to Sunday at 5:00 p.m. with the mother.

[5] Both parties seek an order of sole custody of the child with sole decision-making authority and with specified parenting time to the other parent.

[6] It is the position of the mother that she has been the child’s primary parent and is best able to meet her needs. The mother submits that she was misdiagnosed with Borderline Personality Disorder years ago and that although she suffers from depression and anxiety those issues are well managed with medication.

[7] It is the position of the father that the mother suffers from Borderline Personality Disorder or at the very least from serious mental health issues. It is further his position that the mother does not take her medication consistently and as a result becomes erratic, irrational, makes snap decisions and is prone to extreme verbal and physical outbursts.

[8] Both parents agree that given the lack of communication between them that a joint custody order is not feasible. Neither parent proposed a parallel parenting arrangement.

[9] Both parents presently reside within a 10 to 12-minute walk from each other’s residences. The father wishes to move outside of Toronto. It is his plan to reside with his parents who have just moved from Nova Scotia. They wish to purchase a home and as they cannot afford to buy a home in Toronto they are seeking to move outside of Toronto. Originally the father’s plan was to move not more that 100 kilometres away but at the end of the trial the father changed his plan to move not more than 65 kilometres from the mother’s current address.

[10] The mother seeks spousal support from the father as she gave up her job in Nova Scotia when they moved to Toronto to enable the father to pursue an employment opportunity in Toronto. She stayed at home caring for the child and was financially dependent on the father.

[11] The mother seeks that the order of Justice Sherr dated January 21, 2020 providing for spousal support of $1,350 per month be suspended effective December 31, 2020, due to the impact of COVID-19 on the father’s income, and then be reviewed in one year. However, she seeks a lump sum payment of spousal support of $12,150 representing spousal support from April to December 2020 based on the Order of January 21, 2020.

[12] The mother seeks child support from the father based on an imputed income of $50,000. The father also seeks child support from the mother based on her current income of $31,320 as of May 1, 2020.

[13] Although the father conceded that the mother is entitled to spousal support, he takes the position that he cannot afford to pay spousal support. He seeks that the temporary order of Justice Sherr that required he pay spousal support of $1,350 per month be replaced with an order that he pay spousal support from October 1, 2019 to December 1, 2019 in the amount of $519 per month based on his 2019 income of $97,941. It is submitted that the issue of spousal support then be subject to a review in a couple of years.

[14] The parties agreed to a focused trial with all evidence in chief by the parties to be presented by affidavits subject to cross-examination.

[15] On behalf of the mother, affidavits of the maternal grandfather and the maternal aunt were filed and admitted without a request for cross-examination. The maternal grandmother filed an affidavit and was subject to cross-examination. Dr. Saunders, a psychologist, testified and filed an expert report regarding his assessment of the mother’s mental health. Dr. Chin, the mother’s family doctor testified and her notes were filed.

[16] On behalf of the father, the paternal grandmother filed an affidavit and was subject to cross-examination. Two other witnesses were called to testify with respect to the father’s employment.

[17] In addition, two workers from the Children's Aid Society of Toronto testified.

[18] Both parties filed and relied upon documents in their respective document briefs.

[19] The parties and their counsel attended in-person, but all the witnesses testified through Zoom.

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

1. What custody order is in the best interests of the child?
2. What parenting schedule is in the child’s best interests?
3. If the father is granted sole custody and primary residence of the child, should he be permitted to move the child’s residence outside of Toronto?
4. What amount of child support should be payable?
5. What amount of spousal support should be ordered?

2. Background

[21] The mother is 32 years old and the father is 35 years old.

[22] The parties began to cohabit in the summer of 2015 and resided in Halifax, Nova Scotia. They subsequently became engaged.

[23] Shortly after the parties began their relationship the mother advised the father that she suffered from Borderline Personality Disorder.

[24] Their child was born on […], 2016. Prior to the birth of their child the mother worked in a coffee shop and then in a bank in Nova Scotia.

[25] The mother did not work after the birth of the child. She was the primary caregiver of the child prior to the separation. The mother was totally reliant on the father for financial support.

[26] The parties moved to Toronto in May 2017 to facilitate the father’s career. The father started his own company, Drifter Rigging, which was the first Canadian company to specialize in the rental, designing and operation of automated rigging systems for live events. He initially worked as an independent contractor for Christie Lites and then in 2018 he was hired as an employee of Christie Lites as the head of their automation department.

[27] The father began to travel extensively in this new position often for months at a time.

[28] The father’s income increased quite dramatically from $39,359 in 2017, to $82,992 in 2018 and $97,941 in 2019. Despite this increase in income, the parties were in considerable debt. Some of the debt related to their move to Toronto.

[29] The parties’ relationship began to deteriorate. The mother blamed the father’s prolonged absences from the home, the fact that at she had no supports in Toronto as her parents resided in Wasaga Beach and her sisters also lived out of town and she did not drive. She blamed the father for his lack of emotional support for her in the months of August to September 2019 when her maternal grandfather became seriously ill and subsequently died.

[30] During the summer of 2019, the mother sent a series of what she called “stupid and unfortunate messages” to the father that not only spoke to wanting to commit suicide but also of her inability to care for their child. Many of these texts were produced by the father and they are very disturbing.

[31] The father became increasingly concerned about the mother’s mental health, about the mother not taking her medication consistently and the resultant impact on her ability to care for their young child. He was concerned that the mother was exposing their child to an environment that involved daily drinking.

[32] The father returned home from a concert tour in early September and determined that the mother had totally deteriorated.

[33] On September 25, 2019, the father flew to Orlando, Florida to meet his employer at Christie Lites to rearrange his employment as he felt he could no longer be away for prolonged periods of time. His employer agreed but this resulted in a salary reduction.

[34] On the evening of September 29, 2019, the parties were both drinking. Although there is a dispute as to the details of the incident, it resulted in the mother being charged with assaulting the father.[^1] The mother was held overnight in jail. This was the evening before her maternal grandfather’s funeral.

[35] The mother was released from jail on September 30th the day of her grandfather’s funeral. Her father drove from Wasaga Beach to pick her up so she could attend the funeral. The mother’s release terms contained a provision that she was not to have any communication directly or indirectly with the father and not come within 100 metres of him, except pursuant to a family court order. There were also provisions that there could be contact to make access arrangements or to see the child through a mutually agreed upon third party.

[36] The father was asked but did not agree to bring the child to the mother’s maternal grandfather’s funeral but instead sent a text to the maternal grandmother stating that he was taking the child and going to Ottawa for the week.

[37] The mother commenced an Application and brought an urgent motion on October 3, 2019. It was the position of the father that there was no urgency.

[38] On October 3, 2019 the parties agreed to a temporary without prejudice order that provided the mother with parenting time every day until the return of the motion ranging from 5 to 8 hours. The exchanges were to be facilitated by the maternal grandmother, who lived in Wasaga Beach, at the lobby of father’s apartment. The father was to supply a car seat and to assist in securing it.

[39] The temporary motion was heard on October 7th. For oral reasons Justice Sherr ordered:

1. the child’s primary residence be with father;

2. the child reside with the mother on Tuesdays and Thursdays for 3 hours and every Saturday at 2:00 p.m. to Sunday at 5:00 p.m.;

3. The overnights were to take place at the maternal aunt’s home or the maternal grandmother’s home with the mother advising the father where the visits would take place;

4. The mother was not to consume alcohol or non-prescription drugs while caring for the child;

5. The father was to make a medical appointment to ensure the child’s vaccinations were up to date and to give the mother 48 hours’ notice of any medical appointment and she was permitted to attend at the appointments;

6. The order stated that the court would like the mother to obtain a referral to a psychiatrist and obtain a full report on her mental health status and recommendations, if any, for therapy and medication.

[40] On October 15, 2019, Justice Sherr released his costs decision and ordered costs payable by the mother to the father of $3,000. He ordered that payment and enforcement was suspended pending further order of the court to see how reasonable the parties are as the case develops.

[41] The matter was then adjourned several times on consent.

[42] On December 6, 2019 the parties attended court for a case conference and agreed to a variation of the order of October 7th so that the child would be in the care of the mother every Tuesday from 4:00 p.m. to Wednesday from 8:00 p.m. and every Saturday from 2:00 p.m. to Sunday at 5:00 p.m. The parties also agreed that the child be with the mother for Christmas from December 21st at 2:00 p.m. to December 25th at 12:00 p.m. and December 30th to January 1st, 2020 at 4:00 p.m.

[43] On January 17, 2020, a motion was heard with respect to child and spousal support

[44] On January 21, 2020 Justice Sherr released his decision. The father’s motion for child support was dismissed. The mother was granted spousal support of $1,350 per month payable as of January 1, 2020 based on an income of $80,000 being imputed to the father, without prejudice to claim a different amount and start date at trial.

[45] On February 7, 2020 the parties agreed that the father pay costs of $3,000 to the mother and that these costs be set-off against the prior order of costs owed by the mother to the father.

[46] On March 9th the parties attended court and the case was placed on the trial list for July 20 to 24, 2020.

[47] However, due to the limited court operations as a result of COVID-19, the trial was unable to proceed in the July trial sittings and then father’s counsel was not available for the trial sittings in September.

[48] The mother submitted a 14B motion requesting leave to bring an urgent motion regarding where the child attend school. The endorsement of September 8th states that the mother waited too long to bring the motion and that as the child was in the primary care of the father, he had the right to make the schooling decision.

[49] A new timetable was set and the case was put on trial list for December 7, 2020. The endorsement provided a timetable in the event either party wished to bring a motion prior to trial but the parties were warned of the costs consequences of doing so.

[50] On October 28, 2020, the father proceeded with a motion to change the spousal support order. For oral reasons, the motion was dismissed. The endorsement states that the trial judge will determine the amount of support to be paid on a final basis and the start date of any support order. The father was ordered to pay the mother costs of $2,500 with the trial judge to determine how this amount would be paid.

[51] On November 10, 2020 a settlement conference and trial planning meeting were held. It was recommended that both counsel serve severable offers to settle.

[52] The father submitted a14B motion to Amend his Answer to include the ability to relocate outside of Toronto to another jurisdiction in Ontario. This relief was opposed by the mother. The endorsement of November 17th states that there was no need to amend the father’s pleadings as he was able to present his plan for the child including a move at trial. The trial judge would determine what, if any, restrictions should be ordered in the child’s best interests.

[53] The trial proceeded as scheduled on December 7th to 11, 2020.

[54] Counsel agreed that the many references to the child’s statements and references to information from third parties, who were not called as witnesses, were not being admitted for the truth but simply as narrative to explain subsequent steps taken by the affiants.

[55] The parties were able to resolve the issue of Christmas access. The parties agreed that the child reside in the care of the father from December 18th to December 25th at 11:00 a.m. and reside with the mother from December 25th at 11:00 a.m. to January 3, 2021 at 7:00 p.m.

[56] Further, the parties agreed that if the school holiday break is extended by the Toronto District School Board by two weeks, the child shall be in the care of the father from January 3rd at 7:00 p.m. to January 10th at 10:00 a.m. and in the care of the mother from January 10th at 10:00 a.m. to January 17th, 2021 at 10:00 a.m.

[57] The access exchanges were to occur outside the front entrance of the mother’s residence.

3. Credibility findings

[58] Generally, I found the mother’s evidence to be credible. She answered questions directly and in a straightforward manner. She admitted past mistakes. Although she tended to minimize the mental health crisis that appears to have culminated in September 2019, she was open and honest about her past mental health issues and her difficulties coping with the father being absent.

[59] The mother at times could be quite dramatic as for example, when she called the father a self-acclaimed anarchist who did not file his tax returns.

[60] I found the father’s evidence to be less credible. He avoided questions and would constantly focus on the mother’s shortcomings or blame the mother rather than taking any responsibility for his own errors in judgement.

[61] For example, when asked why he did not file his tax returns he initially blamed the mother as she had filed her returns as being single even though they were in a common law relationship. He admitted that he was aware that as a result, the mother qualified for a higher child tax benefit.

[62] The father testified that he then did not know how to file his return. He then admitted that he never sought the advice of Canada Revenue Agency until this year as to how to file and correct this error. He finally admitted that he did not file his tax returns as he would owe about $23,000 in unpaid taxes. Further, he then admitted that he had not filed a tax return since 2011, that is, before he met the mother and before the child was born.

[63] I further find that the father exaggerated the events of the assault by the mother on the evening of September 29th, 2019. I do not find credible his version of events that the mother slapped him in a drunken rage while he was holding the child.

[64] I find the mother’s version of events more credible namely, that she had put the child to bed, that they both were drinking and he became enraged when she confessed that she had an affair with a neighbour[^2] in the apartment building. The mother further stated that the father wrapped his arms tightly around her and held her so she could not move. She pushed him off and fled the apartment. When she returned the father told her he had called the police and reported that she had slapped him twice. As pointed out by the mother, she is 5’4” and weighs 115 pounds and the father is 6’2” and weighs about 200 pounds.

[65] I also do not find the paternal grandmother’s evidence credible that when she advised the father to call the police to do a wellness check on the mother as a result of the alleged assault, that she was unaware that the mother would be arrested. I do not find the father’s evidence credible that when he called the police that he was also unaware that the mother would be arrested.

[66] The father did not provide a copy of the police report of this incident or call the investigating police officer as a witness which would have been helpful to corroborate his version of events. Further, the intake worker from the Children's Aid Society who took the initial report was not called as a witness and his case note was not admitted into evidence.

[67] I did not find the father’s version of what happened on the first scheduled visit to be credible. The maternal grandmother testified that it was arranged that she would pick up the child for the mother’s visit that was to be from 2:00 to 5:00 p.m.

[68] The maternal grandmother sent a text to the father that she needed the car seat. This was also a stipulation in the court order. The father and the paternal grandmother came out with the car seat and then when the maternal grandmother walked towards her car and turned around, they walked away with it. She tried to text the father but he blocked her cell phone. The maternal grandmother was stranded with the child and no car seat. It was not until 4:15 p.m. that the father unblocked his cell and provided the maternal grandmother with the car seat. The mother ended up not seeing the child. The father’s version of the events is that the maternal grandmother told him she did not need the car seat. He did not dispute that he blocked her cell. I find that it defies common sense that the maternal grandmother would have told him she did not need the car seat.

[69] I found both parties and the maternal and paternal grandmothers tended to exaggerate the faults of the other party. For example, the mother and the maternal grandmother made many allegations about the father neglecting the child. They alleged that the child continually suffered from a diaper rash for over a year that was neglected by the father. But the mother never took the child to a doctor. The maternal grandfather and maternal aunt also made these comments but as their affidavits were admitted without cross-examination I cannot determine their credibility.

[70] There were many allegations made by the mother and her family members about the father sending the child with inappropriate clothing and being unkempt. None of these allegations were verified by the children's aid society although I appreciate that the attendances by the children's aid society workers were scheduled appointments. However, no concerns were ever reported by any neutral third parties to the children's aid society such as the child’s daycare or doctor.

[71] Another example of an exaggerated allegation occurred on or about November 3rd, 2020. While in the care of her mother, the child accidently touched her lips to some body wash that ended up touching her tongue. The mother and maternal grandmother rinsed out her mouth and gave her a freezie to help the taste go away. Apparently, when she returned home her comments about this incident concerned the father. The father called poison control, disparaged the mother and called the children’s aid society. The father stated that his concern was not the actual incident but the fact that he had not been told about it. The mother advised Ms Gillies, a society worker, who investigated the allegation that she is afraid if she voices concerns to the father he criticizes her and says she is crying wolf but then if she doesn’t report something then she is accused of being neglectful.

[72] If the father’s concern was the lack of communication, then there would be no reason to report this incident to the society. I would have expected him to request his counsel write a letter to mother’s counsel, as he previously indicated he only wished to communicate with the mother through their lawyers.

[73] Given that this occurred close to the trial date, I suspect it was to provide evidence to the court that the child was not safe in the mother’s care. The same way I suspect the mother’s sister called the society around the same time to report concerns about the father’s care of the child.

[74] Most importantly, I find that the father has also exaggerated his concerns about the impact of the mother’s mental health upon her ability to meet the needs of the child. If the father had such concerns, prior to this litigation, it is not credible that he would have spent so much time away from the mother and the child and left the mother to be the primary caregiver of the child.

[75] I also find that the paternal grandmother’s evidence not credible that during the 3 weeks the mother spent with her in June and July 2019, that the mother spent the entire day drinking, smoking and using marihuana. The paternal grandmother’s evidence is not credible that she did not advise the father of these concerns or report her concerns to the children's aid society because she did not want to meddle in the affairs of her son and the mother.

[76] The paternal grandmother’s further explanation that as the father was away, he could not have done anything, would be precisely the reason she would have reported her concerns. I accept the mother’s denial of this portrayal of her. She also points out that at the time she was still breastfeeding the child at bedtime so it is not believable that she would be drinking and doing drugs all day.

[77] I also do not find the father’s allegations of the mother exposing the child to an environment of daily drinking and thereby placing the child in danger or neglecting the child to be credible.

[78] Generally, where there is a conflict in the evidence of the father and the paternal grandmother to that of the mother’s evidence, I prefer the evidence of the mother.

4. Discussion

4.1 What custody order is in the best interests of the child?

[79] Subsection 24 (1) of the Children’s Law Reform Act (CLRA) provides that the court shall make custody and access decisions that are in the best interests of the child.

[80] Subsection 24 (2) of the CLRA sets out the factors for the court to consider in making that determination. No one factor is determinative of the issue and no one factor has greater weight than the other.[^3]

[81] Subsection 24 (3) of the CLRA sets out that the court shall only consider a parent’s past conduct if it is relevant to their parenting.

[82] Subsection 24 (4) sets out that in assessing a person’s ability to act as a parent the court shall consider any violence and abuse against the other parent or a child.

[83] An important consideration in determining a child’s best interests is the principle that a child should have maximum contact with both parents if it is consistent with the child’s best interests.[^4]

[84] In applying these legal principles and using the framework of the relevant factors set out in subsection 24 (2), (3) and (4) I make the following findings.

4.1 (a) The child’s relationship with each person claiming custody and persons involved in the child’s care and upbringing

[85] I find that for the first 3 years of her life the mother was the child’s primary caregiver. Although the father was involved, his lengthy absences during the child’s early years naturally resulted in a closer relationship with the mother.

[86] The father submitted that the mother was totally exaggerating her primary care of the child. He disputed the amount of time the mother claimed he was away. The father provided proof of a few airline tickets from 2018 that proved he was home more days than the mother had calculated. He also alleged that he was home many more days in 2019 than alleged by the mother.

[87] Accepting the father’s calculations, he was away in 2018, 153 days or 42% of the year. In 2019, from January to September, he was away 196 days or 72% for the 9 months the child was in the primary care of the mother. Most relevant is the fact that he was continuously absent for the entire months of February, March and April, except for April 21st to 24th. He then returned for a couple of weeks in May and was gone again for the entire months of June, July and August.

[88] The father deposes and provided charts to indicate that despite his lengthy absences, he spent more time at home than someone who works full-time at a 9 to 5 job. The father seems to lack any appreciation of the impact of being away for such lengths of time, then returning and then being absent again had on his relationship with the child and his role in her life, in view of her young age and stage of development. He showed no insight into the impact these absences had on his relationship with the mother.

[89] I find that both parents love the child and are committed to her well-being. She has a close and loving relationship with both of her parents.

[90] Since September 29, 2019 the father has been the child’s primary caregiver. His parents have also spent some time with the child and have now moved to this jurisdiction.

[91] The child has a close relationship with her maternal family. As a result of the assault charge and the restrictions placed on the mother’s time with the child, the mother lived with her parents in Wasaga Beach for a short time and then with her maternal aunt Susan Lindeman’s family from October 2019 to June 2020. Therefore, the child spent significant amounts of time with her mother in the presence of her maternal great aunt Susan Lindeman and her family and with the maternal grandmother and grandfather. The child has therefore developed a very close relationship with her maternal extended family.

[92] Both Susan Lindeman and the maternal grandmother deposed that they witnessed the child being excited to see her mother and being distraught at having to leave the mother. Their evidence was not disputed.

[93] Emma Woodhouse, a children's aid society worker testified that she had no reason to even see the child with the mother as she accepted that she had a close and loving relationship with her and that the interaction would be positive. She further testified that the father had not expressed concerns about the mother’s interaction with the child.

[94] Laura Gillies, a society worker, that was involved with the family briefly in October and November 2020, testified that when she interviewed the child she said many positive things about both parents and did not express any concerns about either parent or either home.

[95] I find that this factor slightly favours the mother as despite the last 15 months in her father’s primary care, the mother was the child’s constant and primary parent in the first 3 years of her life.

4.1 (b) Views of the child

[96] In view of the child’s age, she is too young to express her views and preferences.

4.1 (c) Length of time the child has lived in a stable environment

[97] The child has lived in Toronto in the “Beaches” area since the parties moved to Toronto. Since the separation that resulted in the mother being removed from the matrimonial apartment, the father and child have remained in the same residence. The mother has now obtained an apartment that is only a 10 to 12-minute walk from the parties’ former residence.

[98] Accordingly, if the father remains in his current residence both parties would be able to ensure that the child remains in her current neighbourhood, attends the same school and continues with her current medical professionals.

[99] If the father is permitted to move as is his plan, then this factor favours the mother.

[100] The mother has a history of financial stability, she maintained steady employment since she left home at 19 years of age until the birth of the child. Prior to meeting the father, she supported herself, rented and paid for her own accommodations, did not accumulate debts and filed and paid her income taxes. Since the separation, she has been able to find employment, obtain an apartment, file her income taxes and not accumulate any consumer debt.

[101] With respect to financial stability, the father has been irresponsible in not filing his tax returns and ensuring that he pay the income tax that he now owes. The father has not been able to manage the family’s finances for several years.

[102] The family jointly agreed to move to Toronto to further the father’s career and agreed that the mother would not return to the workforce and become a full-time parent to their child. This decision appears to have resulted in the accumulation of considerable family debt. Despite the father earning an income of $82,992 in 2018 and $97,941 in 2019, he was still unable to manage the debts. He has not personally paid the spousal support that was ordered to pay. His parents on his behalf paid for the months of January, February and March 2020.

[103] In order to meet his debts, the father testified that he needed to sell his car but that he still owes the bank about $12,000 although his payments are deferred due to COVID. He owes about $16,661 on his VISA credit card and is paying $500 per month towards this debt. He testified that he is unable to manage the rent on his apartment. Further, he testified that as a result of the pandemic, his employment income has been reduced to $37,500.

[104] The father has not made any payments pursuant to his court ordered spousal support obligation since March 2020 but has chosen to pay $500 per month towards his VISA credit card debt instead.

[105] As of the end of April 2020, the mother has managed to obtain employment, despite the current pandemic. She is currently earning less than the father namely, $31,320. She is still able to manage to pay for her apartment that is, $1780 per month, which is a hundred dollars more than what the father is paying and pay back about $1,800 in the child tax benefit she collected after the child was placed in the father’s care. However, the mother does owe her parents for money they have loaned her.

[106] The father does not have a plan as to how he intends to deal with his debts other than moving out of the city and sharing living expenses with his parents.

[107] I find that this stability factor favours the mother.

[108] If the father moves then this factor would significantly favour the mother

4.1 (d) Ability and willingness of both parents to meet the child’s needs

[109] I find that both parents have the ability and willingness to meet the child’s basic needs.

[110] I find that despite the allegations made by the mother and the maternal family about the father’s neglect of the child with respect to the state of her clothing, her hair, her hygiene that the father has been able to meet the needs of the child. Although I appreciate the standards of care may be different in each household and that the father’s care may not be the same as the mother’s standards, I find that there is no basis to find that the father does not meet the child’s basic needs.

[111] The child is developing normally and does not have any special needs. The child is currently attending junior kindergarten on-line and her report card indicates that she is meeting all expectations. There is no concern about either parent neglecting her schoolwork.

[112] Both parents are currently working from home. The father testified that he has flexible work hours and works mostly during the evenings so he can spend time with the child and help with schoolwork during the day.

[113] The mother also works from home from about 8:00 a.m. to 4:00 a.m. Despite the father’s concerns that this means that the mother cannot properly supervise the child’s schoolwork, I find that the mother can do so. She explained how she set up the child’s workstation beside her and they both takes breaks at the same time. I do not accept the father’s concerns as valid.

[114] Further, this is only a short time issue as the child will be attending school in-person at some time in the future once the schools open fully. The father seemed to only focus on the current situation. The mother was clear that she intended to have the child attend in-person school when that option became available. The father was less clear as to his position.

[115] The mother focused her concerns about the father’s ability to meet the child’s needs on his lack of involvement in the first 3 years of the child’s life and her expectation that he will return to being on the road and that the child will be left in the care of his parents.

[116] However, I find that since September 2019, the father has assumed his role as the primary caregiver of the child and is committed to rearranging his employment situation so that he will not be required to travel in the future.

[117] The father’s primary focus was on the mother’s past and present mental health as being an impediment to her ability to meet the needs of the child. It is his position that in the past the mother had no routines or schedule for the child due to her mental health issues. It is his position that the mother is unable to meet the stress of the responsibility of caring for the child during the school week and that the child should therefore be in her care during the week-ends and half the holidays when there was less stress and responsibilities.

[118] I do not find any merit in this position of the father. However, due to the emphasis on this issue during the trial it is important to review the evidence that was presented.

[119] The mother was open and honest about her past difficulties. She told the father and various professionals, including the society workers and her own doctor that many years ago she had been diagnosed with Borderline Personality Disorder. She testified that she had been given this diagnosis by a nurse in about 2013 or 2014 but now believed that that this diagnosis was inaccurate. As correctly pointed out in cross-examination, the mother’s affidavit sworn October 3, 2019 did not make this qualification to the diagnosis. The mother blamed her former counsel on this omission.

[120] The mother has had to cope with many challenges in her life. The mother deposes that she was sexually assaulted by an uncle, now deceased from 2006 to 2009, that she never disclosed this abuse and that this had a traumatic effect on her.

[121] Further, in 2012 on her 25th birthday, she was hit by a car and her right leg was crushed and she had to have extensive surgery to put her leg back together. She explained that as she had been a classically trained dancer this was a devastating event for her. She needed to cope with the loss of her ability to dance, the physical pain of recovery and the anguish of re-learning to walk.

[122] The mother did not try to conceal the fact that she has suffered from depression and anxiety for many years, that she has a history of cutting herself and had at least one overdose in 2012.

[123] After the separation, the father discovered her old hospital records dating back to 2012-2013 and has used those records as a basis for his position that the mother has had a diagnosis of Borderline Personality Disorder and has ongoing mental health issues that impact on her ability to parent their child.

[124] The mother obtained a psychiatric evaluation by Dr. Mahboob Aslam and he prepared a report dated October 19, 2019. A Notice to File the Report as a Business Record was served[^5]. However, he was not called as a witness as requested by the father’s counsel and accordingly, the report was not admitted into evidence.

[125] The mother also obtained a psychological assessment by Dr. Douglas Saunders. Dr. Saunders was accepted as an expert by the court as a clinical psychologist with expertise in psychological evaluations and in administration and evaluation of psychological tests. Form 20.2, Acknowledgment of Expert’s Report and his report dated February 15, 2020 were filed. Dr. Saunders’s raw test scores, clinical notes and a list of the documents he had reviewed were also filed as part of his report.

[126] Dr. Saunders states that he was asked to conduct an assessment regarding the mother’s mental health and her current ability to parent a child from a mental health perspective.

[127] He states in his report as follows:

There was no evidence of clinically significant personality abnormalities or any ongoing patterns of vulnerability to significant emotional or mental health problems. Her OMNI-IV profile is entirely within the normal range with respect to significant personality disturbances or personality abnormalities. There is no evidence or indications of features such emotional dysregulation or impulsive behaviors indicative of conditions such as Borderline Personality Disorder.

[128] Much time was spent cross-examining Dr. Saunders about the reliance he placed on the OMNI-IV test as it is a self-reporting test and does not have a validity scale. However, as explained by Dr. Saunders it is the best test in his professional opinion to measure any abnormal personality traits or disorders. The results were also consistent with his own observations and the results of the Personality Assessment Inventory that does have a validity scale.

[129] Dr. Saunders concludes as follows:

The consistent lack of evidence of psychological and emotional difficulties in Ms Lindeman’s profiles on these highly structures and psychometrically sophisticated personality assessment tools provide solid evidence that Ms. Lindeman is emotionally, mentally and interpersonally fit to be a supportive and nurturing mother.

This conclusion reinforces and elaborates the findings of the previous psychiatric evaluation conducted in October 2019[^6] that found no evidence or indication of a personality disorder, noting that Ms. Lindeman’s psychiatric condition at the time met only criteria for the situational diagnosis of “unspecified depressive disorder.”

This conclusion is not only predictable but given the many “losses” Ms. Lindeman suffered just a month before, in September 2019, it was entirely appropriate and healthy to the situation, the death of her special grandfather who symbolized “family” to her, her partner ending their relationship and criminally charging her, and upending her relationship with her young daughter (after she had been a full-time mother for three years).

Each of these events on its own is very high on the typical stress/distress scale. Importantly, the lack of this condition three months later in my evaluation indicates that Ms. Lindeman has the necessary levels of resilience, emotional stability and personal support to ensure her success as a mother for Miesha despite the obvious and ongoing relational stress she has been through.

As such my findings indicate conclusively and unequivocally that when away from her partner, Ms. Lindeman’s mental health is quite stable and her ability to parent her daughter well within the normal range of mothers in the community.

[130] Dr. Saunders was also cross-examined on the fact that he only had information from the mother. As Dr. Saunders quite rightly pointed out he was not asked to conduct a parenting capacity assessment.

[131] Dr. Saunders did however have the mother’s hospital records as listed in the appendix to his report. As an issue was raised that he only listed records from 2014, Dr. Saunders in an email dated March 3, 2020[^7] confirmed that he read the medical reports provided by the mother including from 2011 to 2013 and considered in his conclusions the information about the mother’s overdose due to suicidal thoughts. He further stated that he “absolutely” confirmed the mother’s mental health status as outlined in his report. He was not cross-examined about the mother’s past history or the correction of the documents he reviewed.

[132] Further, in the list of the documents Dr. Saunders was provided, he did receive the father’s affidavit sworn October 4, 2019 that outlined the father’s concerns about the mother.

[133] Dr. Saunders testified that he only used Dr. Aslam’s report as corroboration of his own evaluation. He relied on his interviews, information from the past medical records and the results of the testing measures. He denied that his report only focused on the effect of the death of the mother’s grandfather on the mother’s mental health.

[134] Dr. Jessica Chin who has been the mother’s family doctor since October 2019 also testified. Her notes and letter dated October 28, 2020 were filed as exhibits.

[135] Dr. Chin has seen the mother on a regular and consistent basis in-person and then due to COVID-19 by telephone. She testified that she is treating the mother for depression and anxiety. The mother has been compliant with her treatment. The mother is prescribed Sertraline once daily and well as Lorazepam on an as needed basis for anxiety/panic attacks. Dr. Chin testified that these were common medications. She also conducts a mental health status assessment at each session with the mother but this is not counselling.

[136] Dr. Chin reported and testified that, “Ms. Lindeman has been mentally stable and has developed coping strategies to deal with her stress along with her depression and anxiety.”

[137] Dr. Chin was cross-examined with respect to the fact that her records indicated that on July 11, 2020 the mother reported missed taking Sertraline for 2 days as she was busy. Dr. Chin also testified that in November the mother reported that she missed a few days because she could not afford to buy the medications. Dr. Chin stated that based on her assessment, the mother was still stable.

[138] Dr. Chin confirmed that on October 7th, the mother advised her that she was feeling stressed, the father had not paid any support since April 2020, she was between counsel and the trial was scheduled for December 7th. The mother reported at times she does not want to leave bed, her mother was staying with her and she had not been working since Sept 28th.

[139] Dr. Chin wrote the mother a sick note to be off work for 2 weeks. It was her opinion that the mother was not disabled during this time but was under a high degree of stress. To her knowledge the mother returned to work and was coping well.

[140] The mother in her testimony confirmed that she needed a break due to the stress she was under at the time and did return to work after two weeks.

[141] In her affidavit, the mother stated that she had attended 5 sessions of counselling with a private therapist but that she could no longer afford this therapy and was now attends monthly counselling with Dr. Chin.

[142] Dr. Chin clarified that she was not providing psychotherapy to the mother. Her purpose was to address medical concerns, determine if the mother’s mood, depression and anxiety were stable. As a result of her monthly mental status examination of the mother, she had no concerns.

[143] The mother was cross-examined on her statement that Dr. Chin was providing counselling. She agreed that based on Dr. Chin’s evidence that she was not receiving counselling. I do not find that this was an attempt to mislead the court but simply the mother’s perspective of her attendances with Dr. Chin.

[144] Further, it was submitted that the mother should have called as a witness the therapist she had seen for 5 sessions. If father’s counsel believed that evidence was essential, the therapist whose name was known could have been summonsed.

[145] The mother also produced records from various pharmacies that she attended as proof she was compliant with her medications. She was extensively cross-examined on perceived gaps in filling the prescriptions. The mother explained that she provided the records of the pharmacies that she most often frequented and there could be some that were not provided.

[146] I do not find that there is any evidentiary basis to find that the mother is not complying with the medications that have been prescribed for her even if she may have missed taking the medications for a few days.

[147] It is noteworthy that on at least one occasion in November, the mother missed a few days of taking her medications as she could not afford to fill the prescription. The father chose to pay his credit card debt instead of paying any spousal support that would have assisted the mother financially. I accept Dr Chin’s evidence that despite missing a few days of taking her medications the mother was still stable.

[148] Despite the evidence of Dr. Saunders and Dr. Chin the father continued to insist that the mother suffered from Borderline Personality Disorder based on his experience with the mother and that she was not consistently take her medications.

[149] Emma Woodhouse, a children’s aid society worker who became involved with the family in October 2019 as a result of the mother’s criminal charge, testified that she verified a risk of emotional harm to the child as a result of the mother’s mental health. She testified that this was based on the mother’s statements that she was struggling with depression, had been diagnosed in Borderline Personality Disorder, the father’s statements and text messages the father showed her. Ms Woodhouse felt the mother was going through a tough time with her mental health. Ms Woodhouse did not see the mother’s medical records or speak to her doctor.

[150] Ms Woodhouse agreed that the mother could satisfactorily parent and did not feel the need to see the mother with the child.

[151] Ms Woodhouse’s investigation was superficial and based on very limited information. The file was closed in December 2019. I do not rely on her assessment as there is now medical evidence of the mother’s mental health stability.

[152] I also find that the evidence of Dr. Saunders and Dr. Chin corroborate by my own assessment and observations of the mother. The mother has been able to manage her depression and anxiety despite the stress of having her child removed from her care, facing criminal charges, dealing with the death of her grandfather, dealing with the financial stress of the father not paying court ordered spousal support and the stress of these court proceedings.

[153] Despite the father’s allegations, there is no reliable third party evidence that supports his assertion that the mother neglected the child’s care either before or since the separation.

[154] There is no question that the mother’s text messages that she sent in summer of 2019 and some in 2018 were concerning. The mother testified that she was desperate for attention from the father and would say things she did not mean. She was being stupid and very dramatic. She testified she never acted on anything she said such as attempting suicide or not wishing to be a parent.

[155] The mother testified that she did not sign up to be a single parent, she wanted to be supported and for her and father to be a family. But now that they were not in a relationship, she did not expect anything from him and could be a single parent. She explained that her frustration was because of the relationship between her and the father and had nothing to do with their child.

[156] Although a parent’s mental health is a relevant consideration in the determination of what is in a child’s best interests just because a parent has a mental health diagnosis does not disqualify a parent from obtaining custody.[^8]

[157] The mother does not dispute that she suffers from long standing depression and anxiety. Those conditions are being monitored and treated with medications. Those mental health conditions do not have any bearing on the mother’s ability to parent her daughter.

[158] As stated, I find that both parents have the ability and willingness to meet the needs of the child.

4.1 (e) Plans proposed by each party

[159] The mother’s plan for the child is essentially to return to the status quo that existed prior to the separation. She would continue to be the child’s primary caregiver, the child would continue to live in the same neighbourhood and attend the neighbourhood school. Even though the parties live so close to each other, they are in two different school districts. The father chose the school closest to his home. If the child is placed in the mother’s primary care it was unclear if the child could remain at the school chosen by the father.

[160] The mother proposes that the father has the child in his care on alternate week-ends from Friday to Monday and every Wednesday to Thursday and essentially an equal sharing of all holidays.

[161] The mother also proposes that she make all major decisions for the child. She would consider the advice and recommendations of any healthcare and educational professional and inform the father of all major decisions.

[162] The father’s plan is to uproot the child, change her school, her doctor and her dentist and move to an undisclosed location. His plan provides that he would ensure that the mother maintains a relationship with the child on every week-end from Friday to Sunday, every March break and Easter and an equal sharing of the other holidays.

[163] It is important to review the evolving nature of the father’s plan. Initially, the father proposed, in his 14B motion in November 2020 that he simply be permitted to move outside of Toronto to another jurisdiction in Ontario.

[164] In his affidavit sworn December 12, 2020 he clarified that he and his parents were looking for a home in the Cambridge/Guelph area.

[165] I asked the father, if he had any Google maps to provide the court with some proof of the travel time between Cambridge/Guelph area and the mother’s current residence as he testified it was an hour or an hour and a half away. As he did not have this information, I requested that this evidence be presented to the court.

[166] The next day, the father was recalled to the stand and presented evidence of the time to travel from Clarington, Oshawa and Brampton to the mother’s residence. When asked why he did not provide evidence as to the time from the Cambridge/Guelph area, he admitted that the time was much longer than he anticipated.

[167] The evidence presented indicated that time to travel varied from 40 minutes to 1 hour and a half. The travel time obviously depended on the time of travel, the amount of traffic, and the weather conditions. Further, it was conceded that at the present time there is less traffic due to COVID-19 and that the time could be longer when conditions normalize.

[168] The father’s plan provides that when they move the child will have the benefit of her own room, living with her the paternal grandparents, their dog and two cats.

[169] The father agreed that he had not inquired of his landlord if he could have a temporary rent rebate or reduction of rent and he had not tried to find cheaper rental accommodations in the area.

[170] The father testified that his parents wished to purchase a home and as they could not afford a home in Toronto were looking to move out of the city. He testified that they had a budget, including his income of $500,000. When asked if his parents had considered renting accommodations, he replied that it was their decision to buy a home.

[171] The father’s plan is vague and it is difficult to see any benefit to the child other than she would have her own bedroom. The father’s plan would not permit the mother any time with the child during the week or permit her to be involved in the child’s school or week-day activities. The mother who does not drive would be totally dependent on the father transporting the child every weekend.

[172] When asked in cross-examination what he would do if as a result of the weather it was unsafe to drive, he replied that he would wait for the weather to clear and then drive the child and she could stay with the mother for the extra days to make up the time lost. He would therefore be prepared to have the child miss school, if necessary. It was clear from the way he answered that he had not thought of the issues that could arise as a resulting of moving and ensuring the child had contact with her mother.

[173] I find that the mother’s plan to remain in the same neighbourhood is child focused and strongly favours the mother.

4.1 (f) Ability of each parent to act as a parent

[174] Although the father raises issues with respect to the mother’s inability to make child focused decisions due to her mental health issues, I find there is no evidence to support this allegation.

[175] Prior to the separation, there is no evidence of any inappropriate decisions made by the mother.

[176] The order of October 7, 2019 provides that the father arrange a medical check up to ensure that the child is up to date on her vaccinations. The mother testified that the child’s previous doctor, Dr. Hamid had moved out of the country and she was looking for another doctor. The child had received the required vaccinations up to that point. I assume this was raised as an issue on the temporary motion but no evidence was presented by the father as to the length of the delay or if there was a medical concern due to the child’s vaccinations not being up to date.

[177] The father alleged that the mother would not agree to suggestions he made for the child’s well-being and that as a result he was the more appropriate caregiver.

[178] The father alleged that when he asked the mother for her suggestion about a paediatrician for the child, she suggested the family doctor. It was submitted that somehow by suggesting a family doctor that the mother was not as good parent and it would be better for the child to have a paediatrician. I advised counsel that I was not prepared to take judicial notice of this fact. In the result, the father chose a paediatrician. The mother testified that she did not disagree, as alleged by the father, but just wanted some input.

[179] With respect to attending at the dentist, the mother stated that this was not arranged prior to the separation as the father was not home and kept delaying the dental visit. When the father arranged a dental appointment, the mother did not disagree with his choice. There was no evidence that the father consulted the mother but she testified that she was not fighting him or disagreeing with his choice.

[180] The father alleges that since the separation, the mother would not agree to the child attending a pre-school program as recommended by her paediatrician. However, the mother testified that initially she would not agree as she was home, had limited time with the child and wanted more time. Also, she did not have the financial resources to pay for the daycare. No direct evidence was presented on this issue but it appears that either the mother agreed or the father went ahead and registered the child as she did attend for a short time a part-time pre-school program.[^9]

[181] I do not find that there is any evidence that the father is better able to make decisions about the child than the mother. I find that this is a neutral factor.

4.1 (g) Ability of each parent to foster a relationship of the other parent

[182] This factor is the clearest difference between the parties. I find that the mother will foster a relationship between the father and the child whereas the father will not do this.

[183] Since the separation, the father has shown a complete inability to understand the importance of the child’s relationship with her mother.

[184] The father has left the impression with various professionals and has acted as if he had total decision-making authority. He advised the society workers that he has the ability to make medical decisions. The temporary order of October 7, 2019 only stated that he could arrange a medical check-up to ensure that her vaccinations were up to date and he is to give the mother notice of any medical appointment.

[185] The father continually stated to the society workers and various professionals that the mother only had supervised access. But the order of October 7th stated that the mother’s overnight access was to be in the presence of the maternal grandmother or maternal aunt, the term “supervised” in not used. I find that this is a subtle but important difference as the term supervision implies there is a risk to a child from a parent.

[186] The father denied telling the society workers or any other professional that the mother’s access was supervised. I find that the father’s evidence on this issue is not credible. Both society workers testified that the father told them the mother had supervised access.

[187] In letters sent by father’s counsel on August 26, 2020 and September 14, 2020[^10], counsel refers to the fact the mother’s access is supervised. It should have been clear based on the wording of the October 7th order that the access was not supervised. Further, in the cost decision of October 15th, the court states that the father’s request for full recovery was denied in that although the access ordered was similar to that proposed by the father, the court did not include a term for full supervision.

[188] When this was pointed out to father’s counsel, it was her position that it was up to the mother to clarify this issue not the father.

[189] After the incident of September 29th, instead of immediately arranging for the child to see her mother, the father testified that he needed to take care of himself and go to Ottawa for a week. There was no thought or understanding of the impact on the child of not seeing or even knowing where her mother was.

[190] The father was extremely restrictive on the time the child spent with the mother. For example, the father would not agree that the child spend Christmas at her maternal aunt’s cottage with the rest of her family for more than 1 day even though the parties agreed that the child be with the mother from December 21 to December 25th, 2019.

[191] The father took the child to see a psychotherapist without the mother’s knowledge or consent. He left the impression with the therapist that he had custody.

[192] The father took the child to a therapist even after the mother’s lawyer wrote to his counsel on November 1, 2019[^11] stating that the mother did not agree with the child having counselling or having counselling with this particular therapist, Katharyn Mosbaugh. Mother’s counsel stated that if the father insisted on taking the child to a therapist and he agreed to pay the cost then he suggested 2 therapists who specialize in working with young children.

[193] Despite the mother not agreeing, the father went ahead and arranged an intake appointment on January 20, 2020 and took the child to see Kathryn Mosbaugh.

[194] The father testified that the child was exhibiting distress so regardless of the consequences he felt it was necessary to take her to see a therapist. He did not specify the exact nature of the distress.

[195] Ms Mosbaugh testified. She did not even have a university degree but had a degree as an early childhood educator from the Transformational Art College. Despite being a “Registered Psychotherapist,” I found she did not have the professional qualifications to provide any type of counselling for this child. She only saw the child for 3 sessions. I found her evidence to be unreliable and put no weight on it.

[196] Most importantly for these purposes, despite being aware that the mother did not agree with the counselling and despite not having the legal authority to arrange the counselling, the father went ahead. He showed incredible bad judgement and a willingness to exclude the mother’s opinion.

[197] I find that the father’s plan to move out of the jurisdiction focused on his needs and not the best interests of the child. It was a clear example of his lack of recognizing the importance of the mother in the child’s life. To relegate her to a weekend and holiday parent based on his assessment of her mental health issues shows a lack of willingness to encourage the child’s relationship with her mother and to maximize her contact with the child.

[198] Although both parties expressed the hope that after this litigation is behind them, they will be better able to communicate and co-operate, I find that the mother is the parent more likely to make the effort for this to occur.

[199] The mother will need to accept that the father is now committed to making employment arrangements that do not require extensive travelling. I find that the mother will be able to accept this, if in fact the father does not travel. I also find that the mother will make decisions that encourage a relationship between the child and father. This is evident from the parenting plan she has presented.

[200] As long as the father continues his steadfast belief that the mother is not able to parent responsibly due to her mental health then he will not be able to encourage her to have a meaningful role in the child’s life or involve her in any meaningful consultation about the child.

[201] I further find that the father has abused his temporary order of primary residence with the child. He has outright told professionals with he has custody or left that impression. He has outright told professionals that the mother only has supervised access or left that impression.

[202] Despite not having a custody order and despite being aware the mother did not agree to the child receiving counselling from Ms Mosbaugh, he went ahead and took the child to see her without the mother’s consent or knowledge.

[203] The father has been rigid with respect to his interpretation of the temporary order granting him primary residence and imposed conditions that were not in that order. He refused to permit the mother’s friend who he knew to supervise and refused to allow the mother to have the child at a family cottage during Christmas 2019.

[204] Even after the criminal charges were dismissed, he refused to agree that the exchanges be done by the mother directly. As a result, he was aware that the maternal grandparents continued to need to travel 2.5 hours each way to assist in the mother exercising time with the child. He refused to agree to the mother exercising parenting time in her own apartment without anyone present, even after receiving reports that the mother’s mental health was stable.

[205] I find that this factor strongly favours the mother.

4.1 (h) Conduct of the parties and allegations of domestic violence

[206] As indicated, there is a conflict in the version of events on September 29th that led to the mother’s arrest for assaulting the father. I find that the father has attempted to exaggerate the incident whereas the mother has minimized the incident. However, I find that the mother’s version is closer to the truth than the father’s version. This was at its highest a minor incident and a minor assault fueled by the fact both parties were drinking alcohol and were arguing about their relationship. I do not find that this incident in any way reflects on the mother’s ability to parent.

[207] Both parties have made allegations against each other with respect to past incidents of verbal and physical violence.

[208] The mother has alleged that the father was financially controlling and she needed to borrow money from her parents when the father was away to buy essential items. However, the mother had access to the parties’ joint bank account and was in receipt of the child tax benefit. Although the mother may have felt she was being controlled by the father, I do not find this allegation has been established. I suspect that the lack of funds was a result of the father’s poor money management.

[209] The mother also alleged that the father raped her, including an incident of anal sex. The father vehemently denies this and as a result has taken the position that he will not be alone with the mother as he fears what allegations she may make against him. The mother provided no details with respect to dates or specifics with respect to this very serious allegation. These allegations are not mentioned in the mother’s 35.1 parenting affidavit or initial affidavit. I find that the mother has not proven this allegation on a balance of probabilities.

[210] The mother alleges that the father was verbally abusive to her and would call her names such as “crazy” and “psycho.” Although I tend to believe this allegation, many unfortunate things are said when parties are having marital difficulties. The mother also said inappropriate things about the father in her texts.

[211] The father alleges that the mother was verbally and physically abusive on many other occasions but provides no details or specifics. I find that this allegation is also not proven.

[212] In summary, I do not find that any of the allegations made by either parent with respect to abusive behaviour are relevant with respect to their respective abilities to parent their daughter.

4.1 (i) Conclusion with respect to custody and the parenting plan

[213] I find that balancing all these considerations, it is in the child’s best interests for the mother to be granted custody and primary residence of the child.

[214] As a result of this finding, I do not need to address the father’s desire to move out of the jurisdiction. But I do wish to state that it was the most ill-advised plan I have seen and was a major factor in my decision to find that the father did not appreciate the important role the mother had and continues to have in this child’s life.

[215] The father’s attitude that he could simply move because he was having financial issues and moving where his parents wished to move was not child focused or in the child’s best interests. He displayed a wanton disregard for the mother’s role and involvement in this child’s life that he was prepared to sacrifice for his own selfish benefit.

[216] I have considered that the length of time that the child has been in the father’s care has been extended due to the pandemic and the court’s restricted operations. If not for COVID, this trial would have occurred 5 months ago in July 2020. I find that given the child’s close relationship with her mother that moving her primary residence back to her mother will not negatively impact the child. The child will still be spending a considerable amount of time with her father.

[217] The mother will have final decision-making authority with respect to all major decisions but I will order a consultation protocol between the parties to ensure that both parents are involved in the decision making as much as possible. However, if there is a dispute the mother will have the final decision-making authority.

[218] With respect to the parenting time with the father, I find that the proposal made by the mother will ensure that the child spends quality time with the father and ensures that he is involved with her schooling and her day to day life.

[219] If the father moves his residence more than 25 kilometres from the mother’s present address, that I estimate would be about 30 to 40 minutes travel time, then the father’s mid-week access will be omitted and his week-end access will be changed to alternate Fridays to Sundays unless the mother agrees otherwise.

[220] Both parties have submitted draft orders that are not far apartment with respect to equal sharing of holidays. I appreciate that the father provided more time for the mother in his plan and draft order but that was based on the mother only having week-end access and him being permitted to move. I see no reason why the holidays should not be shared equally.

[221] However, the mother has included a more restrictive summer schedule than that proposed by the father. Neither counsel provided any evidence nor made submissions to support their respective positions on this issue. I am therefore left with simply making an order that I believe is in the child’s best interests. Based on my findings, I see no impediment to the summer holidays being shared equally.

[222] I have also added a stipulation that if either party is away for more than 48 hours, the other party should be given the opportunity to care for the child despite the regular schedule. Accordingly, if the father is required to travel for work then the mother will be able to care for the child and if either parent is away the other parent will have the opportunity to care for the child.

4.2 Child support

4.2 (a) Legal Considerations

[223] In order to determine the appropriate amount of child support to be payable it is necessary to determine the father’s actual income or if income should be imputed to him.

[224] Income under s. 2 of the Federal Child Support Guidelines means annual income by applying section 15 to 20. Those sections provide that income can be determined in one of four ways:

1. Where both spouses agree in writing on the amount ( s. 15 (2)).

2. If the spouses do not agree, using the sources of income set out under “total Income” in the spouse’s Income Tax Return, as adjusted in accordance with Schedule III, using the most current information ( s.16 and s. 2 (3)).

3. If that would not be the fairest way of determining the income, a fair and reasonable amount having regard to the average of income over the last three years (Guidelines, s. 17).

4. In appropriate circumstances, imputing an amount of income.

[225] Section 19(1)(a) of the Federal Child Support Guidelines permits a court to impute income to a spouse who is intentionally underemployed. Intentional underemployment occurs when a payor chooses to earn less than he or she is capable of earning. There is no need to find a specific intent to evade child support obligations before income can be imputed on the basis of intentional underemployment.

[226] When imputing income based on intentional underemployment, a court must consider what is reasonable in the circumstances. The factors to be considered are the age, education, experience, skills and health of the payor, as well as the payor's past earning history and the amount of income the payor could earn if he or she worked to capacity. [^12]

4.2 (b) Findings regarding the father’s income

[227] It is the position of the mother that income for child support purposes be imputed to the father in the amount of $50,000.

[228] The father has attempted to minimize his skills and ability to earn an income. The father deposes that he dropped out of school when he was 16 years old and does not have a high school diploma. He worked as a promoter, then as a sound engineer in bars earning about $20,000.

[229] When he met the mother in 2015, he was working part-time as a labourer for a concert production company and working part-time as a stagehand. He was earning about $35,000.

[230] In 2016, the father worked for a short time as a labourer for a CBC television series and in a film as he is a member of the stagehand union.

[231] The father then sought work from Kinesys USA as an automation technician. He had previously received training from that company regarding automated rigging equipment. The mother’s uncle helped him draft a plan to start his own company providing automated rigging solutions for the live entertainment industry. He was introduced by Kinesys to the owner of Christie Lites, the largest concert lightning company in North America.

[232] The father started his company Drifter Rigging and entered into an arrangement with Christie Lites to work as an independent contractor. This arrangement required that he move to Toronto. The father began to work part time for Christie Lites as a freelance rigger and lighting technician. By the summer of 2017, the father’s company Drifter Rigging obtained some contracts. The father would rent the necessary equipment from Christie Lites and then sub-contract the equipment to these events for which he had obtained a contract.

[233] Christie Lites then advised the father that it was starting its own automated rigging department. The father continued to work as an independent contractor for Christie Lites until about October 2018. He would invoice the company for his work. He was paid for his work and reimbursed for his expenses.

[234] In October 2018, Christie Lites offered the father the position as the head of automated rigging with an annual salary of $75,000 with an overtime structure. He was required to tour for 30 weeks a year as an automated technician. To meet this quota, he was sent on the Shawn Mendes 2019 tour for a combined total of 6 months. This allowed him to receive overtime income of a further $22,000.

[235] In September 2019, the father deposes that he met with his employer to request a change to his position so that he would not need to travel due to his challenges at home. He was offered the position of show manager at a reduced salary of $50,000. This position allowed him to work at home with flexible hours.

[236] As a result of COVID-19, the entertainment business was decimated. Christie Lites closed half of its physical locations across three countries and its staff of over 500 was reduced to fewer than 50 people.

[237] As of March 12, 2020, the father deposes he lost his position as show manager. He along with 3 colleagues in Canada were kept on preparing procedural flow charts under the Canadian Employment Wage Subsidy Program. He was paid $37,500.

[238] When this program ended, the father started a project writing technical documents of warehouse staff procedure for rigging and lighting rental equipment inspections. According to the father, Christie Lites offered to keep him on at the same salary until at least the end of 2020, subject to a review of the company’s financial position in early 2021 to allow him to finish this project.

[239] The father deposes that if his job with Christie Lites ends, then he will be forced to leave the entertainment industry as there will be no further opportunities in the one field he has spent his entire adult working life.

[240] The father deposes that he will then be forced to go back to school. His next plan would be to study structural engineering as a mature student in the hope of transferring his untrained skills, as an entertainment rigger and automated rigging technician, into a more conventional trade. In response to questions from the court, it became clear that the father had not even on a preliminary basis begun to investigate this plan.

[241] Joel Van Netten who is a Vice President of Asset Management at Christie Lites was called as a witness by the father.

[242] Mr. Van Netten confirmed the father’s narrative of the various positions he held with the company. He explained that the father took the job as a show manager as he no longer wished to tour. He testified that touring was a young person’s job.

[243] Mr. Van Netten testified that as a show manager the salary ranges from about $60,000 to $100,000 and you are paid for the work you do.

[244] Mr. Van Netten explained that as a result of COVID-19, the company lost 90% of its revenue and the company instantly cut its labour force but the company is slowly coming back. He further testified that the company kept on its valuable employees as it needed to retain a core group of employees even if they were paid less. He was aware the father was now working on documentation but he did not testify that his contact would end or be reviewed in 2021. He testified that the father showed a lot of common sense, he had a lot of experience, he was eager to learn and to work.

[245] Mr. Van Netten explained that the philosophy of the company’s owner is to compensate people fairly and help them out in other ways. When asked if he was aware that the company had loaned the father $7,500 for legal fees, he indicated that this sounded like something the company would do for its employees.

[246] He confirmed that the owner has a strictly business relationship with his employees.

[247] When asked about the future of the company he felt the industry would be depressed for a few years, but that the company had a solid business model and it would make it through the pandemic.

[248] When asked about the father’s future with the company, he confirmed that the father would be back to earning $50,000 to $60,000[^13] and in about 5 years would be back up to the salary he was previously earning. In the future, he could see the father becoming a Vice President.

[249] I found Mr. Van Netten to be a credible witness. The father’s evidence attempted to portray his background and lack of formal education as being a serious impediment to any future employment and that his position and future at Christie Lites as being tenuous. Based on the evidence of Mr. Van Netten, I find that the father is a valuable employee with a bright and promising future at this company.

[250] Justice Sherr in his decision dated January 21, 2020 with respect to spousal support imputed the father’s income to be $80,000. This was based on the father’s lack of adequate disclosure, no tax returns and lack of adequate explanations for his bank deposits. The order was made without prejudice to the parties’ ability to claim a different amount and start date for their support claims at trial.

[251] The father has now produced his tax returns and Notices of Assessment for the years 2017, 2018 and 2019.

[252] In 2017, he earned $39,359. In 2018, he earned $82,992. In 2019, he earned $97,941.

[253] As a result of filing his tax returns, the deposits in the father’s bank accounts that were not adequately explained at the time of the temporary motion, are consistent with his income.

[254] Justice Sherr expressed concerns with respect to whether there was an arms’ length relationship between the father and the owner of Christie Lites. Based on the evidence of Mr. Van Netten, I am satisfied that it is an arms’ length relationship and it is consistent with the company’s philosophy that the father would have received a loan of $7,500 to assist him with his legal fees.

[255] With respect to the different positions the father held at Christie Lites and the decreasing income he earns, I am satisfied by the evidence of the father and corroborated by Mr. Van Netten that as of September 2020, his income was reduced to the $50,000 to $60,000 range due to the change in his position and that as of mid-March 2020 his income was further reduced due to the pandemic.

[256] I am further satisfied that there is no cash or undeclared income being earned by the father.

[257] The mother alleged that the father may have an ownership interest in a company known as NVC Entertainment and that he received income and equipment in return for writing articles about various products.

[258] Andrew King who held various executive positions with that company testified that the father has never had an ownership interest in the company. The company publishes trade magazines for the entertainment and technology industry.

[259] The father was a freelance contributor for the company from about 2010 to 2017. The father would receive various technology and products and then write a review about them. He was sent the equipment on loan and was required to return it. He only received a small honorarium of $50 for each review and about $200-300 for a longer article.

[260] Mr. King agreed that the father did a good job writing reviews and articles. The father was known as an expert in lighting and rigging technology. He also confirmed that there were many industry publications that would publish the kind of articles the father wrote and he would definitely give him a reference if the father asked.

[261] It is understandable that the mother raised issues about the father’s actual income, his employment, his relationship with Christie Lites and if he had an interest in NVC Entertainment. Some of the uncertainty about the father’s income related to the father’s lack of disclosure and lack of transparency. It also related his social media profile, his own boasts such as a stating he only had to work 7 months to earn $75,000 and articles about him that appeared to imply he had an ownership interest in NVC.

[262] I find that the father’s actual income for 2018 and 2019 is as stated.

[263] As of January 1, 2021, I am satisfied that it is anticipated that the father will only earn $37,500 and his child support obligation should be based on his current income of $37,500. If the father earns more than this amount in 2021, then his child support obligation shall be increased in accordance with his actual income.

[264] Based on an anticipated income of $37,500 as of January 1, 2021 the father shall pay the mother child support in accordance with the child support guidelines of $331.

[265] I find that even if the father’s income continues to be depressed due to the pandemic, based on his abilities, experience and value to the company, I find that he should be able to supplement his income with other employment or seek an increase in salary from Christie Lites and be earning $50,000 by January 2022.

[266] It was unclear in the evidence if the father’s actual salary was reduced to $50,000 as of September 2019 as Mr. Van Netten testified that the usual starting salary for a stage manager was $60,000. The father testified that he was offered the position at $50,000. The father did not provide a copy of a signed contract or any other proof to substantiate this salary.

[267] Based on an imputed income of $50,000 as of January 1, 2022 the father shall pay the mother child support in accordance with the child support guidelines of $461 per month.

[268] The father will be required to provide the mother with proof of his income including his last pay stub of the year each year as of January 15, 2021, his T-4 each year as of March 15, 2021 and a copy of his tax return and Notices of Assessment or Notices of Re-Assessment each year as of June 1, 2021. If the father earns more than $37,500 in 2021 or more than $50,000 in 2022, the amount of child support shall be re-adjusted and the father shall pay to the mother the amount owing no later than June 15th of each year.

[269] At the present time there are no section 7 expenses but if these occur, they should be paid in proportion to the respective incomes of both parties. Such incomes not to be less than the income imputed to the father in this decision.

[270] The father seeks child support from the mother as of the date she obtained employment that is, April 27, 2020.

[271] In view of my order, the father is entitled to 8 months of child support from May 1, 2020 to December 31, 2020. The mother therefore owes the father a total of $2,136, being $267 per month based on her income of $31,320.

[272] As the father owes the mother costs of $2,500 this amount can be set-off from the child support owed by the mother to the father. The father therefore owes the mother costs of $364.

4.3 Spousal support

4.3 (a) Position of the parties

[273] Counsel for the father did not dispute the mother’s entitlement to spousal support but submitted that the father did not have the financial ability to pay spousal support.

[274] It is the father’s position that he pay spousal support for the months of October, November and December 2020 in the amount of $519 per month based on his income of $97,941. The amount of $519 is the mid-range of support in accordance with the Spousal Support Advisory Guidelines (SSAG). It is proposed that the issue of spousal support then be subject to a review in December 2022.

[275] It is the position of the mother that the temporary order of January 21, 2020 providing that the father pay spousal support of $1,350 be suspended effective December 31, 2020 for one year.

[276] It is the position of the mother that as of December 1, 2021, the parties be required to review the issue of spousal support based on updated sworn financial statements from both parties. It is further submitted that the review would be with respect to quantum and duration but not entitlement. If the parties cannot agree on the terms of spousal support or any related issue such as disclosure, they shall be at liberty to bring a motion on this issue.

[277] It is further the position of the mother that no later than January 20, 2021 the father pay the mother $12,150 representing 9 months of spousal support, from April to December 2020 owing pursuant to the temporary order of January 17, 2020.

4.3 (b) Findings

[278] Based on the undisputed evidence, the mother is entitled to spousal support on a compensatory and non-compensatory basis.

[279] The mother gave up her position at a bank in Nova Scotia to move to Toronto to further the father’s career. A joint decision was made that mother stay home and care for their child. The mother was totally dependent on the father for financial support.

[280] After the separation, the mother had no source of income and had to rely on social assistance.

[281] As of April 27, 2020, the mother was able to obtain a minimum wage job as a financial services customer representative. She is working from home. Her job requires her to speak to delinquent payors and input information into a computer. She is paid $15 per hour and works 40 hours a week from about 8:00 a.m. to 4:00p.m. This job has no advancement or career possibilities.

[282] Given the pandemic and current lockdowns, the mother works from home and the child is attending school on-line. The mother currently does not have the opportunity to look for other employment.

[283] The mother’s position and calculations with respect to spousal support are based on the temporary order of January 20, 2020 but that order was clear that it would be reviewable at trial.

[284] The father in effect conceded that spousal support commences as of October 1, 2019 although he wishes no further spousal support to be payable after December 1, 2020 subject to a later review. The mother’s counsel made no submissions on the start date of spousal support. It does not make any sense to leave this issue to be determined later, on a review.

[285] Based on my findings, the mother’s entitlement to spousal support arose when the parties separated. There is no dispute as to the father’s income for 2019. The father should be required to pay spousal support as of October 1st, 2019 to December 1, 2019 based on his 2019 income of $97,941.

[286] The evidence established that the mother has only received spousal support for the months of January, February and March 2020 in the amount of $1,350 per month for a total of $4,050.

[287] The mother’s claim for spousal support from April 2020 to December 2020 of $1,350 per month does not take into consideration that the mother obtained employment and that this amount was based on the father’s income being imputed at $80,000.

[288] However, the father actual income in 2020 is unclear. The father’s financial statement sworn September 28, 2020 states that his income last year from all sources was $72,896 which is clearly incorrect. This raises issues with respect to the father’s credibility. If this amount refers to his 2019 income it is clearly wrong. If there is another explanation, then it was not provided.

[289] The father has not provided a break-down or proof of his total income for 2020. His position as a stage manager allegedly earning $50,000 continued for the first 3 months of 2020, he then received CEWS and then he testified that he was being paid $37,500. He did not provide a copy of his new contract, his Record of Employment or information as to if he received any benefits such as payment for vacation pay when his position was terminated in mid-March 2020.

[290] Although the onus is on the party seeking to impute income to establish an evidentiary basis upon which a court can make this finding, where there is a lack of financial disclosure this obligation is mitigated.[^14]

[291] A party must provide full and complete financial disclosure to ensure that the information required to decide the issue is before the court[^15]. I draw an adverse inference from the failure of the father to provide clear and complete evidence as to his total income in 2020.

[292] I find that an income of $50,000 should be imputed to the father for 2020. This would be based on my rough calculations of payments he would have received for the entire year. The onus was on the father to provide his exact income for 2020 and this court should not have to guess what that might be. If his income is less than $50,000 for 2020, then I find that income should be imputed to him in that amount due to his ability to earn an income in that amount and due to his non-disclosure.

[293] I find the mother’s proposal to suspend the father’s obligation to pay spousal support for one year subject to a review in December 1, 2021 to be a step in the right direction.

[294] Further, based on the evidence I find that it will take a couple of years for the entertainment industry to recover from the pandemic and that the issue of spousal support should be suspended until January 1, 2023. In 2021 and 2022, the father will be obligated to pay child support and arrears of spousal support and given his reduced income he will need time to reorganize his finances.

[295] I also find that it is reasonable to assume that the father will not be in a position to earn more than $50,000 for a couple of years.

[296] I find that the father is therefore obligated to pay spousal support from October 1, 2019 to December 1, 2020. This is only 15 months and based on both a compensatory and non-compensatory basis, this duration may not adequately compensate the mother. However, given the fact that the amounts I intend to order far exceed the ranges suggested in the SSAG calculations it may be that a shorter duration is appropriate. That is an issue that will be considered on any review of the father’s spousal support obligation.

[297] Therefore, given the father’s present reduced income because of the effect of the pandemic on his industry, his spousal support obligation is suspended until January 1, 2023 at which time a review as to the quantum and duration of spousal support can be initiated. However, if the father earns more than $50,000 or neglects to provide the court ordered disclosure a review may be initiated earlier.

4.3 (c) Quantum of spousal support

[298] The Spousal Support Advisory Guidelines (SSAG) are advisory and a useful starting point once entitlement is established.

[299] SSAG formulas are intended to generate appropriate outcomes in the majority of cases. But the authors recognized that the formulas may not always be adequate or appropriate and set out a number of exceptions.

[300] Justice Sherr in his decision[^16] with respect to temporary spousal support reviewed in detail those exceptions. I adopt his analysis as set out in paragraphs 72 to 77 as follows:

[72] However, the SSAG are about more than just the ranges. Chapter 12 of the SSAG sets out a number of exceptions to the ranges that the court should take into consideration, if relevant. The relevant exceptions in this case are:

a) 12.1 – Compelling financial circumstances at the interim stage;

b) 12.4 – Illness and disability; and

c) 12.7 – Basic needs/hardship.

[73] The Spousal Support Guidelines: The Revised User’s Guide (the guide), by Carol J. Rogerson and D.A. Rollie Thompson, sets out that the exception for compelling financial circumstances at the interim stage is based on the recognition that the amount may need to be different – either higher or lower – during the interim period while parties are sorting out their financial situations immediately after their separation. The SSAG amounts may be too low during the interim period, particularly in shorter marriages under the without child formula or the custodial payor formula, where the amounts generated by the formula are relatively low.[12]

[74] The guide goes on to say that the interim exception may also cover cases involving hardship/inability to meet basic needs in the transitional period in the immediate aftermath of separation. There may thus be some overlap with the basic needs/hardship exception in section 12.7 of the SSAG and even the disability exception in section 12. 4 of the SSAG, but it is preferable to use the interim exception for short-term, transitional needs.

[75] The guide sets out that the illness and disability exception will generally be relevant where the marriage is short-to-medium length and there are no children in the care of the recipient, but the disability is long-term. These will be cases that fall under the without child support formula or the custodial payor formula. The formulas produce ranges for amount and duration that may seem “too low’ or “too short”, certainly to recipients.[13]

[76] The guide explains that the basic needs/hardship exception recognizes the specific problem with shorter marriages (1-10 years) under the without child support formula (and the custodial payor formula which is built around the without child support formula) where the recipient has little or no income and the formula is seen as generating too little support for the recipient to meet his or her basic needs for any transitional period that extends beyond the interim exception. The exception allows for awards higher in amount than the SSAG ranges, enough to meet basic needs, but does not allow for an extension of duration. This exception has been primarily applied on temporary support motions.[14]

[77] Justice Mark Shelston conducted a thorough review of case law applying these exceptions in Dunleavy v. Comeau, [2019] ONSC 4535 at paragraphs 71 to 75. Each case is dependent on its particular circumstances, but courts have not hesitated to order support well in excess of the SSAG ranges when the exceptions apply.[15] In Dunleavy, Justice Shelston ordered temporary spousal support of $3,500 each month when the upper SSAG range was $1,999 each month.

[301] Justice Sherr found that at the interim stage when he determined the amount of temporary spousal support that the exceptions with respect to compelling financial circumstances and basic needs/hardship exceptions applied.

[302] Although the cases cited all apply the compelling financial circumstances and basic needs/hardship exception in the context of temporary support motions, Justice Sherr’s temporary order provided that the trial judge could adjust the amount and start date.

[303] The temporary order imputed income to the father at $80,000 and spousal support of $1,350 per month to commence as of January 1, 2020.

[304] At trial, I have found that the father’s actual income for 2019 is $97,971 and I have imputed his income for 2020 at $50,000. I have further determined that the commencement of spousal support should be as of October 1, 2019.

[305] The father’s position that he should only pay spousal support of $519 from October to December 2019 is based on the mid-range of the SSAG. This would provide the father with 86.8% of the Net Disposable Income (NDI) and the mother with 13.2%.

[306] This amount would not have been sufficient to meet the mother’s even most basic needs and the needs of the child when the child was in her care. Based on the mother’s financial statement sworn October 15, 2020 her expenses are $3,635 per month. This is the only financial statement filed by the mother in this trial. Based on the decision of Justice Sherr, on the temporary motion the mother filed a financial statement where her expenses were only $1,030 per month. However, this was based on the social assistance income she was receiving. Based on the financial statement filed on this trial, her expenses are significantly higher.

[307] I do not find that the father should benefit from the fact that the mother lived within the amount she received from social assistance. Even after the temporary order was made for the mother to receive slightly more funds from the father, he then only paid for 3 months and then did not pay anything else.

[308] The father’s proposal does not take into consideration the application of the SSAG exceptions as noted above. No submissions were made as to why the analysis of Justice Sherr with respect to the applicability of the compelling financial circumstances or basic needs exception should no longer apply.

[309] On behalf of the father, it was submitted that in determining the amount of spousal support payable, the court should take into consideration the fact that the father was paying all the household debts. However, I find that at the present time, the only evidence presented was that the father was paying $500 per month for a VISA debt. No evidence was presented as to when that debt accumulated or the specifics of that debt. I find that there is insufficient evidence to reduce the amount of spousal support the father should have been paying as a result of debts that he deposes were accumulated during the relationship.

[310] Taking into consideration the mother’s financial circumstances when the relationship ended, her entitlement on a compensatory and non-compensatory basis, ,her reasonable expenses, the added expense of caring for the child when the child resided with her, I find it is appropriate for the father to pay an amount of spousal support that provides the father with 60% of the NDI and the mother 40%.

[311] Based on the father’s actual 2019 income of $97,971 and the mother’s receipt of social assistance of $10,320 (which is clawed back), if the father paid the mother spousal support of $3,366 per month, he would still have 60% of the NDI. Further, the after-tax cost of spousal support to him is only $2,317.00. The father will therefore pay the mother spousal support from October to December 2019 of $10,098.

[312] With respect to 2020, until the mother obtained employment as of May 1, 2020, she still had the same need for spousal support from the father. Even based on his imputed income of $50,000, if the father paid spousal support at the SSAG high range of $316 per month, he would have 80.2% of the NDI and the mother would only have 19.8%. I find that it is appropriate for the father to pay spousal support of $2,011 per month which would provide him with 60% of the NDI. The after-tax cost to him would be $1,497 per month. Therefore, the father owes the mother spousal support from January to April 2020 in the amount of $8,044.

[313] From May to December 2020, the mother was employed and earned $31,320. As a result, the mother was required to pay the father child support of $267 per month[^17].

[314] Based on the SSAG high range this results in the father paying the mother spousal support of $115 per month. The father would have 66.7% of the NDI. If the father pays the mother spousal support of $771 per month, he would have 60% of the NDI. The after-tax cost to him is only $536 per month. I find this amount is appropriate. The father therefore owes the mother spousal support from May to December 2020 in the amount of $6,168.

[315] Therefore, the father owes the mother spousal support from October 1, 2019 up to and including December 1, 2020 of $24,310 less $4,050 he has already paid for a total owing of $20,260.

[316] Both parties agree that as of January 1, 2021 the father’s spousal support obligation be suspended. I find it is realistic to review this order as of January 1, 2023.

5. Conclusion

[317] Both counsel submitted Draft Orders with respect to the relief they were seeking. Some of the items such as orders incidental to custody such as travel and obtaining government documents without the consent of the other party or orders with respect to communication, I have granted as both parties requested similar relief.

[318] I have not granted the order requested by the mother’s counsel requiring the father to obtain life insurance as there was no evidence of the cost of obtaining such coverage. In view of the father’s precarious financial situation, I would not impose a further financial burden on him. However, if he has or obtains life insurance as a benefit through his employment, then the mother should be the beneficiary.

[319] The draft order submitted by the mother also contained a clause to remove the mother’s name from the rental lease for the apartment the parties shared and indemnify the mother from any claim arising since the separation. There was no evidence presented about this issue and I am doubtful the court has jurisdiction to grant this relief. Accordingly, I am not prepared to grant this relief.

[320] Further, I do not have the jurisdiction to order that the mother is entitled to receive the Child Tax Benefit although based on my decision she does have custody, primary residence and decision-making authority and would appear to be entitled to that benefit.

[321] There will be an order as follows:

Freedom from the Other:

1. Communication and interaction between the Applicant, Brittany Lindeman (“Applicant”) and the Respondent, Mark Desloges (“Respondent”) shall only be in respect of the child, Miesha Belle Desloges, born […], 2016 (“Miesha”). Communication shall be respectful, civil and courteous. Communication shall be by email.

2. Neither party shall harass the other, speak ill of the other, or discuss any matters in this court file with or in the presence of Miesha, or with any other party in proximity to Miesha. They shall not allow third parties to disparage the other parent within earshot of Miesha.

Parenting:

3. Miesha shall reside in the primary care of the Applicant. In accordance with the consent order with respect to Christmas access, Miesha will be returned to the Applicant’s care as of January 10, 2021 at 10:00 a.m.

4. The Applicant shall have sole custody of Miesha and make major decisions about Miesha's welfare, including decisions about Miesha's:

a. education;

b. major non-emergency health care;

c. major recreational activities; and

d. religious activities.

5. The Applicant shall consult with the Respondent prior to making any major decision. The Applicant shall advise the Respondent in writing of any major decision she is considering making and seek his input. The Respondent shall provide his input within 14 days of being advised of the decision the Applicant is contemplating.

6. In making decisions, both the Applicant and the Respondent shall consider the advice and recommendations of any healthcare and educational professional involved with Miesha. If there is a dispute, the Applicant shall have the right to make the final decision.

7. Both parties shall have the right to obtain information about Miesha from medical and education professionals involved with her pursuant to section 20 of the CLRA.

8. The Applicant may apply for government-issued identification documentation including Miesha’s passport without the consent or signature of the Respondent. The Applicant shall retain the original documentation, including Miesha’s passport, save and except for the dates when the Respondent is travelling with Miesha outside of Canada. The Applicant shall provide the Respondent with a copy of all government documents.

9. Both parties shall have the right to attend parent-teacher interviews and any school functions. Both parties shall have the right to attend Miesha’s extra-curricular activities.

10. The parent residing with Miesha shall make the daily decisions affecting her welfare.

11. If Miesha needs emergency medical care while with one parent, that parent will promptly notify the other of the emergency by phone and by text message.

12. The party who does not have care of Miesha shall be entitled to a daily telephone or Facetime call at 6:00 p.m. for 15 minutes maximum duration, until Miesha is 10 years old, at which time she will choose the duration of the call.

13. In the event either party is absent from the GTA for 48 hours or more, whether for employment or vacation, the other party is to be given the first opportunity to care for Miesha. There will be no make-up time provided unless the parties agree otherwise.

14. Each party shall make best efforts to accommodate reasonable requests for additional parenting time for the child to attend special events, with an equal amount of make-up time to be provided for the parent who is accommodating the requesting parent. The make-up time shall be provided as soon as possible.

15. The Respondent shall have time with Miesha as follows (with the transfer to be after school ends or at 4:00 p.m. outside the Applicant’s residence if Miesha is not physically present in school):

a) every Wednesday from after school to Thursday return to school commencing January 20th, 2021 and

b) alternate weekends, commencing January 22, 2021, from Friday after school to Mondays return to school. If the Monday is a statutory holiday, the week-end shall be extended to Tuesday. If the Friday is a professional development day, the week-end shall commence on Thursday after school.

Holiday Schedule:

16. The parties shall adopt an equal holiday sharing schedule. The holiday residence schedule overrides the Regular Schedule in the event of conflict.

Christmas Break:

17. The parties will share equally Miesha's school Christmas Break. As of Christmas break 2021 Miesha shall reside with the Respondent for the first half of the Christmas Break in odd-numbered years and the last half of the Christmas Break in even-numbered years, and with the Applicant for the first half of the Christmas Break in even-numbered years and the last half of the Christmas Break in odd-numbered years. The first half will start after school on Miesha's last day of school in December and end at noon on the date that is the half-way point of the Christmas Break. The second half will start at noon on the date that is the half-way point of the Christmas Break and end on the morning Miesha returns to school in January, at which time the Regular Schedule shall resume.

Christmas Eve/Morning and Christmas Day:

18. Regardless of the Christmas Break schedule set out above, as of 2021, Miesha shall reside with the Respondent on Christmas Eve/Morning until Christmas Day at noon, and with the Applicant from noon on Christmas Day until 8:00 p.m. on Boxing Day in odd-numbered years, and with the Applicant on Christmas Eve/Morning until Christmas Day at noon, and with the Respondent from noon on Christmas Day until 8:00 p.m. on Boxing Day in even-numbered years.

March Break & Father’s Day/Mother’s Day

19. The parties shall rotate March Break in alternate years, commencing with pick up at school on the Friday immediately before March Break, and ending with return to school on the Monday following the end of March Break. The Respondent shall have Miesha with him for the first March Break in 2021.

20. Regardless of the regular access schedule, Miesha shall be with the Respondent on Father’s Day from 12:00 pm to drop off to return to school Monday morning if it is not his weekend.

21. Regardless of the regular access schedule, Miesha shall be with the Applicant on Mother’s Day from 12:00 pm to return to school Monday morning if it is not her weekend.

Summer Camp:

22. In the event that Miesha attends overnight summer camp during her summer vacation, the summer vacation schedule below shall be modified to accommodate Miesha’s camp schedule.

23. The Applicant shall advise the Respondent of the weeks she wishes to send Miesha to camp and if agreed, such consent not to be unreasonably withheld. the remainder of the summer shall be equally divided between the parties.

Summer Vacation:

24. Miesha shall spend alternate weeks with each parent during the summer school vacation. If the parties agree, when Miesha is 7 years old, she will spend two consecutive weeks with each parent. In making plans, each party shall take into account camp and other scheduled activities.

Miesha's Birthday:

25. Miesha will spend her birthday in accordance with the regular schedule.

Other holidays and special occasions

26. Miesha will spend Thanksgiving, Easter weekend, Halloween and Canada Day in accordance with the regular schedule.

Child Support:

27. The Applicant has paid child support to the Respondent from May 1, 2020 to December 1, 2020 in the amount of $2,136.

28. Commencing January 1, 2021, the Respondent shall pay to the Applicant child support of $331.00 per month for the benefit of Miesha, based on the Respondent’s anticipated income of $37,500 for 2021 and in accordance with the Child Support Guidelines.

29. Commencing January 1, 2022, the Respondent shall pay to the Applicant child support of $461.00 per month based on an imputed income of $50,000 for 2022 and in accordance with the Child Support Guidelines.

Ongoing Financial Disclosure:

30. The Respondent shall provide the Applicant with proof of his income including his last pay stub of the year each year as of January 15, 2021, his T-4 each year as of March 15, 2021 and a copy of his tax return and Notices of Assessment or Notices of Re-Assessment each year as of June 1, 2021. If the father earns more than $37,500 in 2021 or more than $50,000 in 2022, the amount of child support shall be re-adjusted and the father shall pay to the mother the amount owing no later than June 15th of each year.

31. For as long as spousal support is payable, or if the Applicant requests the Respondent contribute to any special or extraordinary expenses, the Applicant shall provide the Respondent with a copy of her income tax return and Notices of Assessment or Notices of Re-Assessment each year as of June 1, 2021.

Special and Extraordinary Expenses:

32. The parties shall contribute to Miesha's special or extraordinary expenses, proportionate to their respective incomes, actual and/or imputed provided the parties have consented to the expenses in advance, in writing.

33. Future special or extraordinary expenses may include, but are not limited to daycare, summer programs and/or day camp or sleep away camp, one extra-curricular activity per year, counselling or therapy, dental care and uninsured medical expenses. Such expenses shall not be incurred without the prior written consent of the other parent. Consent shall not be unreasonably withheld.

34. The Applicant and the Respondent shall each maintain Miesha as beneficiary of extended health insurance through his or her employment, if available, and will sign documentation authorizing the other to make claims directly to his or her insurer. A party who is reimbursed for a medical expense paid by the other shall immediately forward the reimbursed amount to the other.

Spousal Support:

35. The Respondent shall pay spousal support to the Applicant as follows:

a) October 1, 2019 to December 1, 2019, $3,366.00 per month for a total of $10,098;

b) January 1, 2020 to April 1, 2020, $2,011.00 per month for a total of $8,044;

c) May 1, 2020 to December 1, 2020, $771.00 per month for a total of $6,168.

36. The Respondent shall be given a credit of $4,050 for a total therefore owing of spousal support of $20,260.00. Unless the parties agree otherwise, the Respondent shall pay a minimum of $250.00 per month with respect to these arrears as of March 1, 2021.

37. As of January 1, 2023, the parties shall review spousal support for the Applicant based on updated sworn Financial Statements from both parties. There shall be a review of quantum and duration of spousal support (but not entitlement). If the parties cannot agree on spousal support payable to the Applicant or any related issues such as disclosure, they shall be at liberty to bring a motion on this issue(s).

Life Insurance:

38. If available through his employment and so long as he is obligated to pay child support and/or spousal support, the Respondent shall irrevocably designate and maintain the Applicant as the beneficiary of the full proceeds of the policy.

Costs:

39. Pursuant to the Order of Justice Sherr, dated October 28, 2020, the Respondent shall pay the Applicant costs of $364.00 ($2,500 owing by the Respondent less $2,136 the Applicant owes the Respondent for child support) to be paid by March 1, 2021.

40. If either counsel is seeking costs, written submission not to exceed 3 pages with a bill of costs and any offer to settle shall be submitted within 30 days of the release of this decision. The other party shall submit his or her responding submissions, not to exceed 3 pages, 30 days thereafter. Costs submissions shall be filed with the trial coordinator and can be submitted by email. If counsel refer to any caselaw, only the citation and paragraph relied upon are necessary. A copy of the caselaw is not to be provided.

41. A Support Deduction Order to issue.

[322] I have attached the Spousal Support Advisory Guidelines calculations to this decision. If either party finds a mathematical error in this decision, or an imputing error in the software calculations attached to this decision, they may serve and file written submissions by January 19, 2021 and the other party will then have until February 2, 2021 to serve and file a written response. Any submissions are to be emailed to the trial coordinator.

[323] I wish to thank both counsel for their professional presentation of this case.

Released: January 6, 2021

Signed: Justice Roselyn Zisman

[^1]: The charges against the mother were withdrawn on April 23, 2020. The father was not consulted about the withdrawal. [^2]: The father in his affidavit refers to this male as a drug dealer. However, there was no evidence presented to verify this claim. Other references to hearsay comments in the affidavits of both parties were not admitted for their truth. [^3]: Libbus v. Libbus, [2008] O.J. No. 4148 (Ont. S.C.) at para. 88 [^4]: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 at para. 24 and 25 [^5]: The notice should have been pursuant to section 52 of the Evidence Act with respect to admission of a medical report. In any event, given the relevance of the evidence, I was not prepared to have the report admitted without the ability of the father’s counsel to cross-examine the doctor. [^6]: This is the report of Dr. Aslam that was not admitted into evidence at trial but was relied upon by Dr. Saunders to corroborate his opinion. [^7]: Exhibit 6 [^8]: Marrello v. Marrello, 2016 ONSC 835 at para. 125 and the several cases cited therein. [^9]: No evidence was presented on how the child ended up attending the program. [^10]: Exhibit 20 [^11]: Exhibit 19 [^12]: Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731 (C.A.). [^13]: His evidence on the salary the father would be earning did not coincide with his previous evidence that the general salary for a stage manager started at $60,000 but he was not asked to explain the discrepancy. [^14]: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552 (OCA); Graham v. Bruto, 2008 ONCA 260 [^15]: Charron v. Charron, 2016 ONSC 4719; [^16]: 2020 ONCJ 41, references omitted [^17]: The mother owes the father a total of $2,136 for child support from May to December 2020 which was set-off from the costs the father owed the mother.