DATE : March 2, 2021 COURT FILE NO. D80982/15

ONTARIO COURT OF JUSTICE

B E T W E E N:

L.B. ACTING IN PERSON APPLICANT

- and -

P.E. WIRI KAPURURA, for the RESPONDENT RESPONDENT

HEARD: FEBRUARY 23-24, 2021

JUSTICE S.B. SHERR

REASONS FOR DECISION

Part One – Introduction

[1] This trial was about the parenting and child support arrangements for the parties’ 6-year-old son (the child).

[2] The respondent (the mother) seeks parenting orders that the child have his primary residence with her, that she have sole decision-making responsibility for the child and that the applicant (the father) have a regular parenting time schedule with the child to take place on alternate weekends and on alternate Wednesdays overnight. [1]

[3] The mother also seeks child support from the father, retroactive to May 1, 2016, and asks the court to impute his annual income, starting in 2019, at $81,689.

[4] The father seeks parenting orders for joint decision-making responsibility and for equal-parenting time with the child. He asks for an order for sole decision-making responsibility if the court finds that an order for joint decision-making responsibility is not in the child’s best interests. If this order is not granted, he asks that some decision-making responsibility be allocated to him.

[5] The father asks that no child support be ordered and for the court to dismiss the mother’s claim for retroactive support.

[6] The parties have already resolved the parenting issues of holiday parenting time, travel with the child and communication between them.

[7] The court conducted a focused trial of the remaining issues. The direct evidence of the parties was provided by affidavit. The father was given permission to give supplemental oral direct evidence. The mother did not call additional witnesses. The father called his niece and his girlfriend to give oral testimony and filed a short affidavit from a friend.

[8] The trial was conducted by zoom video.

[9] The remaining issues for trial are:

a) What parenting orders regarding primary residence, decision-making responsibility and parenting time are in the child’s best interests?

b) Should the court make an order for retroactive support, and if so, when should the order start?

c) What is the father’s income for support purposes – should income be imputed to him?

Part Two – Background facts

[10] The mother is 40 years old. She was born in St. Lucia and came to Canada in 2008. She lives with the child. She is in her last year of a Bachelor of Health Studies program at York University.

[11] The father is 50 years old. He was born in Guyana and came to Canada when he was a teenager. He has worked for the past 21 years as a customer service representative for a telecommunications company. He lives alone. He has been in a committed relationship for the past 5 years.

[12] The parties cohabited from June 2013 until April 18, 2015, when the father was criminally charged with assaulting the mother.

[13] The parties have the one child together. He is in grade one.

[14] The child lived with the mother after the parties separated. The father’s criminal release terms prevented him from communicating directly or indirectly with the mother and provided that visitation or access with the child must be done through a mutually agreed upon third party, or with the assistance of a Children’s Aid Society.

[15] The father went several months without seeing the child after the parties separated.

[16] On June 5, 2015, the father issued an application for custody of the child. The mother responded, also seeking a custody order, supervised access and a restraining order.

[17] On July 14, 2015, Justice Roselyn Zisman heard a contested motion and ordered that the father have temporary supervised access with the child at Access for Parents and Children in Ontario. She also ordered the father to pay the mother costs of $800.

[18] In August 2015, the criminal charges were withdrawn against the father. The mother deposed that after discussions with the father, she wanted to give him another chance to be a good parent for the child. She said that she wrote to the crown attorney, saying that she did not want to proceed with the criminal case. She stated that she did not attend on the father’s court date.

[19] On November 3, 2015, the parties both filed notices of withdrawal of their claims in this court.

[20] The father claims that from August 2015 until April 2019, he had equal parenting time with the child – and often more parenting time than the mother. The mother claims that the child resided primarily with her.

[21] The father claims that the mother started restricting his parenting time in April 2019. The mother denied this and said that the father did not exercise his parenting time from April 2019 until June 2019.

[22] On May 22, 2019, the mother brought this application. The father filed his answer/claim on August 12, 2019.

[23] In July 2019, the parties agreed that the father would have temporary parenting time with the child on alternate weekends and on every Wednesday overnight. The mother said that this was just the summer parenting plan. The father disagrees. The parties also orally agreed that the father would start paying the mother child support of $250 each month. [2]

[24] In September 2019, the father said that the mother reduced his overnight parenting time on Wednesday nights to alternate weeks.

[25] On November 8, 2019, the parties consented to an order for Christmas parenting time. They also consented to a temporary, without prejudice order, that the father pay child support of $718 each month to the mother, based on an annual income of $77,028. They agreed that the temporary parenting schedule they had been operating under would continue after the Christmas holiday.

[26] On August 24, 2020, on a contested motion, Justice Zisman made temporary orders that the mother have custody and primary residence of the child and that the father have parenting time on alternate weekends from Friday at 6 p.m. until Monday at 6 p.m. and on alternate Wednesdays from 6 p.m. until Thursday at 6 p.m. She also made detailed orders about exchanges and ordered that all communication between the parties be through Our Family Wizard. She also ordered the father to provide financial disclosure to the mother.

[27] On October 27, 2020, Justice Zisman ordered the father to pay the mother $4,000 for her costs of the motion.

[28] On October 28, 2020, Justice Zisman ordered the father to provide detailed financial disclosure, including information about his stock trading. She also set out a trial plan in her order.

[29] On November 12, 2020, Justice Zisman made final orders, on consent, regarding the parties’ parenting time with the child on holidays and about communication between the parties. Also, on consent, she made a temporary order reducing the father’s child support payments to $480 each month, starting on November 1, 2020, based on his annual income of $52,089. This order was made without prejudice to the mother’s ability to seek more child support from the father at trial.

[30] On February 18, 2021, the parties executed minutes of settlement to finalize the issues of summer parenting time and travel. The terms agreed to will be incorporated into the court’s order.

Part Three – Amendments to the Children’s Law Reform Act

[31] On March 1, 2021, amendments (the amendments) [3] to the Children’s Law Reform Act (the Act), contained in the Moving Ontario Family Law Forward Act, 2020, came into force.

[32] Language in the Act is modernized with these changes. Terminology related to child custody and access is replaced with terminology related to parenting.

[33] Custody now becomes decision-making responsibility. Decision-making responsibility is defined as responsibility for making significant decisions about a child’s well-being, including with respect to,

a) health,

b) education,

c) culture, language, religion and spirituality, and

d) significant extra-curricular activities.

[34] Access by a parent to a child now becomes parenting time. Parenting time is defined as the time a child spends in the care of a parent of the child, whether or not the child is physically with the parent during the time.

[35] And access by a non-parent to a child becomes contact. This is defined as the time a child spends in the care of a person other than the child’s parent, whether or not the child is physically with the person during that time. [4]

[36] The amendments set out who can apply for two different kinds of orders – parenting orders and contact orders. It establishes a list of non-exhaustive criteria with respect to determining the best interests of a child. It introduces provisions to assist the courts in addressing family violence. And it establishes a framework for determining when one parent will be permitted to relocate with a child and the amount of notice that must be provided to another parent.

[37] The amendments are aligned, for the most part, with the changes made to the Divorce Act (Canada) that also came into force on March 1, 2021.

[38] The Moving Ontario Family Law Forward Act, 2020 adds a transition provision as section 76 to the Act. This section reads as follows:

Transition, Moving Ontario Family Law Forward Act, 2020

76 (1) In this section,

“transition date” is the day on which section 25 of Schedule 1 to the Moving Ontario Family Law Forward Act, 2020 comes into force.

Custody deemed to be decision-making responsibility

(2) Unless the court orders otherwise, a person who, immediately before the transition date, had custody of a child in accordance with an order under this Part or a separation agreement is deemed, as of the transition date, to have decision-making responsibility with respect to the child under the order or separation agreement, and references in the order or separation agreement to custody shall be read as references to decision-making responsibility.

Access deemed to be parenting time, contact

(3) Unless the court orders otherwise, a person who, immediately before the transition date, had access to a child in accordance with an order under this Part or a separation agreement is deemed, as of the transition date, to have parenting time with respect to the child if the person is a parent of the child, or contact with respect to the child if the person is not a parent of the child, and references in the order or separation agreement to access shall be read as references to parenting time or contact, as the case may be.

Extent, terms, etc. of decision-making responsibility and parenting time

(4) For the purposes of subsections (2) and (3), a person’s decision-making responsibility, parenting time or contact with respect to a child is as described in the order or separation agreement respecting custody, access or both, as it applied immediately before the transition date.

Non-application of ss. 39.1, 39.3

(5) A person who is deemed under subsection (2) or (3) to have decision-making responsibility or parenting time with respect to a child is not required to give notice under section 39.1 or 39.3 if a court order made before the transition date specifies that no notice is required in respect of a change in residence by the person or by the child.

[39] Section 76 of the Act does not address whether the amendments should be applied to cases started but not determined before March 1, 2021. This is unlike section 35.3 of the Divorce Act, which does expressly state that the amendments to that legislation will apply to any case decided on or after March 1, 2021. That section reads as follows:

Proceedings commenced before coming into force

35.3 A proceeding commenced under this Act before the day on which this section comes into force and not finally disposed of before that day shall be dealt with and disposed of in accordance with this Act as it reads as of that day.

[40] Nor has Ontario passed a regulation providing clarification about whether the amendments should apply to a case started but not finally disposed of on or after March 1, 2021. For instance, when the Child, Youth and Family Services Act, 2017 came into effect on May 1, 2018, Ontario made an entire regulation governing transitional matters under that Act. Subsection 11 (1) of Ont. Regulation 157/18 explicitly set out that the new law would apply to any case commenced but not concluded before May 1, 2018.

[41] The lack of a clear transition provision creates confusion about what law to apply in this matter, as the trial was completed before March 1, 2021 and the decision is being released after March 1, 2021.

[42] The parties were given the opportunity to make submissions on this issue. The mother submitted that the amendments should be applied as they reflect the government’s intention about what is now in a child’s best interests. She also submitted that whatever law is applied, it is in the child’s best interests to grant the orders that she seeks. The father did not make submissions on the technical legal issue. His position is that whatever law is applied, it is in the child’s best interests to grant the orders that he seeks.

[43] In this case, the court will apply the approach set out in the amendments, for the following reasons:

a) The result in this case would be exactly the same – no matter whether the court applied the best interests considerations set out in subsections 24 (2) (3) and (4) of the Act, as it read before March 1, 2021, or the best interests considerations set out in the amendments.

b) The best interests criteria in the Act, as it read before March 1, 2021, and those set out in the amendments are non-exhaustive – all relevant factors concerning a child’s best interests have been and will continue to be considered by courts. There is nothing that precludes the court from considering the best interests considerations set out in the amendments. This was the case even before they came into effect. One case where a court applied the approach in the amendments was White v. Kozun, 2021 ONSC 41, where Justice Melanie Kraft wrote at paragraphs 174, 176 and 177:

[174] The list of “best interests” criteria in the DA amendments is a non-exhaustive list. The list does not prioritize any one criterion over another, with the exception of the primary consideration. No single criterion is determinative, and the weighting for each criterion will depend on the circumstances of the particular child.

[176] Again, the list is a non-exhaustive list. Thus, the court must also consider any other factor that is relevant in the case before the court.

[177] While it is the current legislation that governs this case at this time, the approach taken in the DA amendments is, in my view, a better one generally in cases relating to children as the language, in and of itself, is less adversarial. Although the terms in the proposed legislation do not govern this case, the discretion the Court has under the current provisions of the DA amply enable a judge to make orders using the new language.

c) The amendments modernize the best interests language and are much clearer than some of the clunky and confusing terminology used under subsections 24 (2) (3) and (4) of the Act, before the amendments came into force.

d) The amendments reflect the government’s intention of what is now in a child’s best interests. There is a strong argument that the determination of a child’s best interests after March 1, 2021 should not be decided differently just because the case was started earlier than March 1, 2021.

e) The amendments, to a large extent, codify the existing jurisprudence about a child’s best interests. For instance:

1. Subsection 24 (2) of the amendments provides that in determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing.

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

2. Clause 24 (3) (c) of the amendments states that the court should consider each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent. This best interests consideration has often been set out in the jurisprudence as an important factor in making parenting orders. See: Moreira v. Garcia Dominguez, 2012 ONCJ 128; Leggatt v. Leggatt, 2015 ONSC 4502; Scrivo v. Scrivo, 2012 ONSC 2727; Tran v. Chen, 2012 ONSC 3994.

3. Subsection 24 (6) of the amendments states that in allocating parenting time, the courts must give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of a child. This principle was previously set out by the Ontario Court of Appeal in Rigillo v. Rigillo, 2019 ONCA 548.

f) The amendments provide a comprehensive and useful definition of family violence. [5] They also set out best interests factors relating to family violence. [6] These are reflective of much of the jurisprudence about domestic violence. See for example: M.R. v. A.R., 2020 ONCJ 327; Scarlett v. Farrell, 2015 ONCJ 35; A.T. v. M.H., 2020 ONCJ 277; R.S.K. v. A.M.A., 2013 ONSC 1148; Al-Hadad v. Al-Harash, 2020 ONCJ 269; G.T.C. v. S.M.G., 2020 ONCJ 511; Lawrence v. Bassett, 2015 ONSC 3707.

g) Section 76 of the amendments provides that starting on March 1, 2021, existing custody orders are deemed to be decision-making responsibility orders and that existing access is deemed to be either parenting time or contact. If this decision were to be written using the language of the Act before the amendments came into force, they would be deemed by section 76 to be the kind of orders authorized under the amendments. It makes sense then to use the new language in this judgment, as the orders will be deemed to be renamed this way anyways.

[44] The court adopts the approach recently taken by the Ontario Court of Appeal in Bourke v. Davis, 2021 ONCA 97. This was an appeal of a mobility case which considered the amendments to the Divorce Act in assessing the best interests of a child, even though they were not yet in force. The court wrote at paragraphs 43 to 45:

[43] The appellant asserts that the trial judge erred in his analysis when he failed to consider the amendments to the Divorce Act which will come into force on March 1, 2021 and will include s. 16.92(2). The provision, once amended, will read as follows:

In deciding whether to authorize a relocation of the child, the court shall not consider if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

[44] While this provision was not in force at the time of the trial, and is not yet in force, it is a fair submission by the appellant that s. 16.92(2) reflects Parliament’s view about the court’s approach to the moving parent’s intentions when considering the best interests of the child.

[45] The Government of Canada website provides the following explanation for the s. 16.92(2) amendment:

Parents seeking to relocate with their children are sometimes required to answer in court the difficult question of whether or not they would proceed with a relocation if they were not permitted to bring their children. A response of “I won’t relocate without my child” may be interpreted as evidence that the proposed relocation is not sufficiently important and should not be permitted. A response of “I would relocate without my child” may be interpreted as evidence that the parent is not sufficiently devoted to the child.

This provision would prohibit courts from considering this question – or the parent’s response – if raised in the context of the court proceedings. This will assist in focusing on the specific legal issue before the court.

[45] The court emphasizes that it is only interpreting the amendments to apply in this case, which deals with a child’s best interests in relation to parenting orders, where relocation is not an issue. It is not determining whether the amendments should apply to all cases that were started, but not finally disposed of, before March 1, 2021. [7]

Part Four – Applicable legislative provisions in the amendments

[46] Section 20 of the amendments reads as follows:

Equal entitlement to decision-making responsibility

20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to decision-making responsibility with respect to the child.

Rights and responsibilities

(2) A person entitled to decision-making responsibility with respect to a child has the rights and responsibilities of a parent in respect of the child, and must exercise those rights and responsibilities in the best interests of the child.

Authority to act

(3) If more than one person is entitled to decision-making responsibility with respect to a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child.

If parents separate

(4) If the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other, the right of the other to exercise the entitlement to decision-making responsibility with respect to the child, but not the entitlement to parenting time, is suspended until a separation agreement or order provides otherwise.

Parenting time

(5) The entitlement to parenting time with respect to a child includes the right to visit with and be visited by the child, and includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education.

Marriage of child

(6) The entitlement to decision-making responsibility or parenting time with respect to a child terminates on the marriage of the child.

Entitlement subject to agreement or order

(7) Any entitlement to decision-making responsibility or parenting time under this section is subject to alteration by an order of the court or by a separation agreement.

[47] Subsection 21 (1) of the amendments reads as follows:

21 (1) A parent of a child may apply to a court for a parenting order respecting,

(a) decision-making responsibility with respect to the child; and

(b) parenting time with respect to the child.

[48] Section 24 of the amendments reads as follows:

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing.

Factors

(3) Factors related to the circumstances of a child include,

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

Factors relating to family violence

(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor.

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child.

Allocation of parenting time

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

Application to related orders

(7) This section applies with respect to interim parenting orders and contact orders, and to variations of parenting orders and contact orders or interim parenting orders and contact orders.

Part Five – Parenting issues

5.1 Positions and evidence of the parties

5.1.1 – The mother

[49] The mother says that her application to the court is a “cry for help”. She says that she is a victim of family violence. She describes the father as abusive, controlling and demanding. She deposed that the family violence took place both during their relationship and after their separation. She deposed that the abuse often happened in the presence of the child. The mother said that the father would threaten her that if she ever called the police that she would never be free in Canada – that she had no idea about what he was capable of.

[50] The mother described how the father constantly calls her a jackass and an idiot and tries to intimidate her – often in front of the child. She said that the father is very aware of his behaviour – that he won’t abuse her in front of people they know. Most of his abuse, she said, is on the phone – he leaves no written record.

[51] The mother said that the father assaulted her in 2015 by choking her and pushing her against a wall. The father was charged with assault and the parties separated. The mother testified that she found the subsequent criminal and family law cases to be overwhelming. Both cases were withdrawn.

[52] The mother testified about three incidents of post-separation violence by the father:

a) In December 2017, he threw a bag of the child’s clothes at her in a parking lot, hitting her in the face and scattering the clothes. This took place in front of the child. She provided evidence of a request to obtain video of the incident long before she started this case. However, the video had already been erased.

b) In 2019, the father followed her and the child in an aggressive manner into her building following an exchange of the child, despite her telling the father that she did not want to speak with him. She ended up crying, she said, until the father left the building.

c) In March 2020, during an exchange of the child, the father called her an idiot and said, “keep your distance, you are a despicable human being, you are disgusting”. She said that the child was present.

[53] The mother testified that when the father does not get his own way, he has tantrums, calls her names, hangs up the phone and often will not talk to the child for several days.

[54] The mother set out how she bought a landline for the child to be able to speak to the father, to avoid her having to endure his verbal abuse on phone calls. She blocked him on her social media accounts because she could see that he was viewing them. She testified when questioned by the father, “to me you are dangerous. I don’t want to give you access to personal information that you can use against me. I can see you were watching my photos and stories”.

[55] The mother testified that she tries “to humble herself” to the father to avoid confrontations and de-escalate his behaviour. She said that communication with the father can be civil, as long as he gets his own way. She said that since August 24, 2020, when Justice Zisman ordered detailed exchange arrangements, and communication only through My Family Wizard, she has not had much direct contact with the father and conflict has been significantly reduced. The child, she said, is also doing better, not being exposed to conflict.

[56] The mother believes that she has always put the father’s interests ahead of the child’s interests and her own interests. She said that she now wants to put the child’s interests first.

[57] The mother testified that she delayed bringing this case to court because she was not strong enough – she had to “find her voice”. She found the legal involvement with the father in 2015 overwhelming and felt that it affected her mental health.

[58] The mother said that she has tried, but she cannot effectively co-parent with the father. She is prepared to seek the father’s input on major decisions but requests sole decision-making responsibility for the child.

[59] The mother described how she has always been the child’s primary caregiver. She stated that the child is doing very well in her care. She said that she attends to all the child’s needs. She asks that the child continue to have his primary residence with her.

[60] The mother, in her trial affidavit, set out in detail the history of the father’s parenting time with the child since 2015 as follows:

April 2015 to July 2015– The father had no parenting time due to the no-contact order.

July 2015 to August 2016 – The father started with day parenting time, with a third party assisting with exchanges. This increased to one overnight each week. There was no specific schedule in place and the father came when he chose.

September 2016 to 2017 – The father started picking up the child every Friday after school and dropped him off during the day on Saturday.

2017 – The father, at some point in 2017, started taking the child on Sunday evenings and dropped him off to school on Monday mornings. This was in addition to his overnight parenting time on Fridays.

2018 to April 16, 2019 – The father had overnight parenting time on Mondays and Wednesdays.

April 2019 to June 2019 – The father did not have parenting time with the child.

July 2019 to September 4, 2019 – The father had parenting time on alternate weekends and on each Wednesday overnight during the summer.

September 2019 to August 24, 2020 – The father had parenting time on alternate weekends and on alternate Wednesdays overnight.

August 24, 2020 to present – On alternate weekends to Monday at 6 p.m. and on alternate Wednesdays overnight to Thursdays at 6 p.m.

[61] The mother was not critical of the father’s parenting. She has no safety concerns when the child is with him. Her concern is about the father’s treatment of her and his inability to positively communicate with her about the child.

[62] The mother said that she is supportive of the father having generous parenting time with the child. She has already agreed to a shared holiday schedule. She feels that it is in the child’s best interests to maintain the current parenting time schedule. She said that this has worked out very well for the child.

5.1.2 – The father

[63] The father tells a very different version of events.

[64] The father claims that the mother has fabricated her evidence about family violence to marginalize him from the child’s life and destroy his relationship with the child.

[65] The father denies that he assaulted the mother in 2015 and said that he had no knowledge of the other instances of violence the mother alleged. He said that they never happened.

[66] The father denied verbally abusing the mother. He described himself as a gentle man who is respectful of women.

[67] The father said that with a couple of exceptions, where the mother denied him parenting time with the child, he has had an excellent co-parenting relationship with her. He said that he is shocked by her allegations and that they deeply hurt him.

[68] The father deposed that he was equally involved with raising the child when he lived with the mother.

[69] The father denied putting any pressure on the mother to drop the 2015 criminal charges or to withdraw the family court case. The court notes that the criminal and family law cases were withdrawn after Justice Zisman made a temporary order on July 14, 2015, that the father’s parenting time with the child be fully supervised. The court does not believe that this was a coincidence.

[70] The father said that in August 2015, he and the mother met at a coffee shop and agreed to a shared parenting arrangement. He said that the mother drafted the terms. Although it was not signed, he did not think that this was necessary, as both of them abided by this agreement. [8]

[71] The father set out his own chart of his historical parenting time with the child as follows:

September 2015 to September 2016 – Every Monday and Tuesday overnight and alternate weekends.

September 2016 to September 2019 – Every Monday, Wednesday and Friday overnight and some Sundays overnight. He also picked up the child daily from school.

April 2019 to June 2019 – The mother restricted his parenting time.

July 2019 to December 2019 – He contacted the mother’s counsel to obtain parenting time and felt he had to take what was offered. It started as alternate weekends and every Wednesday overnight, and in September 2019, the mother unilaterally changed the Wednesday overnights to alternate weeks.

[72] The father said that he has taken the child on several trips, including to the United States, Guyana and Montreal. He said that he also cared for the child twice, for extended periods, when the mother went on vacations. This was not disputed by the mother.

[73] It is the father’s position that except when the mother denied his parenting time, he had the child with him more than 50% of the time from August 2015 until April 2019. That was disputed by the mother.

[74] The father submits that it is in the child’s best interests that the parties share joint decision-making responsibility for the child. In the alternative, he seeks a parallel parenting order (an allocation of decision-making responsibility between them). He feels that he and the mother have effectively communicated about the child and can do so in the future. If one parent must have sole decision-making responsibility for the child, he feels that he is better able to make these decisions than the mother.

[75] The father described his close relationship with his child and stated “he is my life”. He seeks equal parenting time – whether that is Monday, Wednesday and Friday overnights each week or alternating weeks between him and the mother.

[76] The witnesses called by the father confirmed that he has a very close relationship with the child and is a loving father. The child has spent considerable time with the father and is comfortable with him.

[77] Both the father’s niece and girlfriend described the father as a gentle man. His girlfriend testified that she and the father have been together for five years and he has never been disrespectful or abusive to her. She said that he respects women. From what she had observed, the mother and the father had an excellent co-parenting arrangement.

[78] Neither the father’s niece nor his girlfriend were present during any of the incidents of abuse alleged by the mother.

5.2 Findings of contested facts

[79] The court believed the mother’s evidence about family violence and controlling, coercive and abusive behaviour towards her by the father.

[80] The court also believed the mother that the father often acted in this manner in front of the child.

[81] The mother was a compelling witness. She described the father’s treatment of her in a detailed manner. Reliving these incidents was clearly upsetting to her and she was understandably emotional as she gave her evidence. Her fear and distrust of the father was palpable. She has clearly struggled with her ability to manage this relationship and protect the child from the dysfunctional relationship she has with the father.

[82] Observing the interaction between the parties during the trial leads the court to conclude that the father’s claim that their co-parenting of the child was excellent is untrue, or at best tone deaf. His statements during the trial about the mother belied this evidence. He described her as:

a) Deceitful,

b) Fabricating conflict,

c) Attempting to entrap him,

d) Being solely responsible for any communication difficulties between them,

e) Having done everything within her power to destroy his relationship with the child.

[83] Evidence supported the mother’s contention about how difficult the father can be to deal with. It also demonstrated controlling behaviour by him. His actions corroborated the mother’s evidence.

[84] For example, in early June 2020, the mother’s lawyer wrote to the father asking him what parenting time he would like with the child over the summer. The mother was inviting the father to have extra time with the child. The father chose to ignore the request. A follow-up inquiry was sent to him in early July 2020. He chose, once again, to ignore the request. As a result, the father did not have extra parenting time with the child in the summer of 2020. The father’s excuses at trial for ignoring these requests were flimsy. Yet, the father complained at this trial about the mother trying to destroy his relationship with the child and trying to keep the child away from him.

[85] Another example was in January 2021, when the mother asked the father to sign a consent for the child’s passport renewal. The father sent the form back to her unsigned. He explained that since a court order had to be attached, he wanted to wait for the outcome of this case before he signed anything. This was unreasonable, as there was a temporary order in place.

[86] The father’s financial affairs are not complicated. Yet he delayed in providing disclosure that resulted in the court having to make financial disclosure orders. The last order was made by Justice Zisman on November 20, 2020 about his stock dealings. The father did not comply with this order and provided no further financial disclosure to the mother, claiming that the disclosure ordered by Justice Zisman had been previously provided.

[87] The evidence also reveals that the father abused the mother financially after their separation. Despite a significant disparity in their incomes, the father did not begin paying child support until July 2019, and only after the mother had to obtain legal assistance to obtain this. Even then, the father only paid her $250 each month – much less than his legal obligation.

[88] The court also accepts the mother’s evidence that when they separated in 2015, the father paid her no support and kept most of her belongings.

[89] Justice Zisman placed very clear page limits on the parties’ trial affidavits in her November 20, 2020 court order – 20 pages each, including exhibits. She ordered that the father could file 10 additional pages in response to the mother, inclusive of exhibits. Each party was permitted to call two additional witnesses.

[90] The father did not come close to abiding by Justice Zisman’s order. He attempted to incorporate a prior affidavit of about 120 pages in his material, together with case conference briefs and several additional affidavits from third parties. If this had been an isolated incident, the court would likely have attributed this to the father being self-represented. However, the father impressed the court as being very capable. In the context of this case, the court does not give the father the benefit of the doubt – he was trying to take advantage of the mother.

[91] The father’s lack of credibility on the family violence issue impacted his credibility about the parenting history. The court preferred the mother’s evidence on this issue, although it finds that, at times, the father had more parenting time than she set out in her trial affidavit. The court finds that at some point starting in early 2018 and continuing until April 2019, the father had the child with him two nights each week and during some weeks, he would have the child with him for three nights each week.

[92] The court finds that at no point did the parties have a shared parenting arrangement as defined in section 9 of the Child Support Guidelines (the guidelines). [9]

[93] The court also finds that, despite many challenges in dealing with the father, the mother has worked very hard to facilitate his relationship with the child. The court rejects the father’s evidence that she is trying to destroy it. The mother has been very flexible about the father’s parenting time. She has agreed to give him additional time with the child and has often agreed to allow the child to go on holidays with him. Her evidence was noteworthy, in that it did not criticize his parenting ability. She recognized the importance of his relationship with the child.

5.3 Decision-making responsibility and primary residence

5.3.1 Legal considerations for decision-making responsibility

[94] The Ontario Court of Appeal in Kaplanis v. Kaplanis sets out the following principles in determining whether a joint custody (decision-making responsibility) order is appropriate:

1. There must be evidence of historical communication between the parents and appropriate communication between them.

2. It can’t be ordered in the hope that it will improve their communication.

3. Just because both parents are fit does not mean that joint custody should be ordered.

4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.

5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

6. The younger the child, the more important communication is.

[95] Mutual trust and respect are basic elements for a joint decision-making responsibility order to work effectively. See: G.T.C. v. S.M.G., 2020 ONCJ 511.

[96] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. See: Griffiths v. Griffiths, 2005 ONCJ 235. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop.

[97] Financially supporting one’s children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint decision-making responsibility order as it demonstrates poor judgment and an inability to prioritize the child’s interests. Jama v. Mohamed, [2015] ONCJ 619.

[98] In S.S. v. S.K., 2013 ONCJ 432, this court wrote that courts should assess the dynamics of a family when determining if a joint decision-making responsibility order is appropriate. Particularly, the court should examine if the granting of such an order is:

a) more or less likely to de-escalate or inflame the parents' conflict;

b) more or less likely to expose the child to parental conflict; and,

c) whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders for the purpose of asserting control over their former spouse and children, tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a joint custody order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.

[99] In K.H. v. T.R., 2013 ONCJ 418, this court wrote the following about parallel parenting orders (now allocation of decision-making responsibilities):

[56] A parallel-parenting order can be a useful tool for settlement. The risks associated with it (as set out above) may be outweighed by the benefits of the parties avoiding further litigation and coming to an agreement that both can accept – an agreement where both parties are fully engaged as parents. With parents who sincerely want to be involved with their children for their children’s benefit, such an order will likely have the benefit of de-escalating conflict. The children, in such cases, will receive the benefit of two involved parents.

[57] However, a sad reality of family law is that there is a certain group of parents who seek such orders for the purpose of asserting control over their former spouse and children. These parents tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a parallel-parenting order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.

[58] All of these considerations lead this court to the conclusion that courts should be very careful before granting parallel-parenting orders in high-conflict cases. They are rife with potential complications that could have the inadvertent effect of escalating conflict and destabilizing children. There is also the risk that important decisions regarding children will not be made in a timely manner if there is a conflict over who is entitled to make that decision. It is not in the best interests of children to paralyze the decision-making process about them.

[59] Logic dictates that these risks grow exponentially in a high-conflict case if a party is seeking a “full parallel-parenting model” order. There are many child-related decisions that require a high-level of parental communication. Important medical and academic needs for children need to be coordinated. The treatment of any special needs of children must be coordinated. A proposed parenting model where each parent acts fully independently of the other in making these important decisions (where the parents have little or no ability to effectively communicate about the children) needs to be approached with extreme caution.

[100] Ultimately, the court must determine if a joint decision-making responsibility order, or an order allocating any decision-making responsibility between the parties, is in the child’s best interests.

5.3.2 Analysis

[101] Even without the court’s findings of family violence, the court would not have made an order for joint decision-making responsibility. The communication between the parties is far too poor.

[102] The father acknowledged that the August 24, 2020 order of Justice Zisman has improved matters between the parties. That order provides detailed rules for parenting exchanges and sets out that communication between the parties should only be through the My Family Wizard software program. The father deposed that he would like those terms to continue as he fears that otherwise the mother will fabricate allegations against him.

[103] Parties who require such detailed court intervention about their interactions are not good candidates for joint decision-making responsibility orders.

[104] The parties also have a deep distrust of the other. There must be some modicum of trust and respect to make a joint decision-making responsibility order viable for a child. That does not exist here.

[105] The father believes that the mother is intent on destroying his relationship with the child. The mother expressed considerable fear of how she will manage with the father once the court case is over and her lawyer is gone.

[106] The court’s findings of family violence reinforce its findings that a joint decision-making responsibility order is not in the child’s best interests. It also informs the court that it is not in the child’s best interests to allocate any decision-making responsibility to the father – the father’s alternative parallel parenting request. There is a power imbalance between the parties. The father can be controlling and coercive. The mother is submissive with him. A joint decision-making responsibility order, or any allocation of decision-making responsibility to the father would run too high a risk of exposing the mother and the child to family violence and escalated conflict.

[107] The court finds that it is in the child’s best interests for the mother to have sole decision-making responsibility and for the child to have his primary residence with her. Summarizing the relevant best interest factors set out in subsections 24 (2) (3) and (4) of the amendments:

a) The mother is the parent who best provides for the child’s physical, emotional and psychological safety, security and wellbeing.

b) The child has had a stable parenting arrangement with the parties, as described by the mother. The child has had his primary residence with the mother and regularly spends parenting time with the father. The mother has made most of the major parenting decisions for the child in a responsible manner and has shown that she can care for and meet the needs of the child. The child is functioning well in her primary care. This should not be disrupted.

c) The court received no independent evidence about the child’s views and wishes. It was agreed that he loves spending time with both parties.

d) The mother has facilitated and promoted the child’s relationship with the father.

e) The mother has worked very hard to communicate and cooperate with the father despite her trepidation in dealing with him. The father can communicate and cooperate positively, but this is contingent on his getting his own way.

f) The mother has been the victim of family violence by the father on a continuing basis. He has, at times, been controlling, coercive and abusive to her. He has financially abused her. This has been a pattern of conduct. It has caused the mother to fear for her physical and emotional safety with him. The mother has taken steps to limit her interaction with the father and conducts herself in a manner not to trigger his abusive conduct.

g) The child has often been exposed to the family violence. This has the potential to emotionally harm him.

h) The father has not taken any steps to address the family violence. He totally denies it. Court orders have helped address this issue by limiting the interaction between the parties.

i) It is not in the child’s best interests to put the mother in a position to have to jointly make decisions with the father due to the history of family violence.

[108] The mother proposed a term that she will first seek the father’s input before making any major decision regarding the child. This term is in the child’s best interests and will be ordered.

5.4 Parenting time

5.4.1 Legal considerations

[109] The test for determining parenting time is what order is in the best interests of the child. In making this determination, the court has considered the “best interests” factors set out in the amendments, as well as all other relevant considerations.

[110] The child should have maximum contact with both parents if it is consistent with the child’s best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27; Rigillo v. Rigillo, 2019 ONCA 548.

[111] An equal-parenting time plan requires a high level of communication and coordination between the parties, particularly when the child is very young. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child. See: Bokor v. Hidas, 2013 ONCJ 40; L.I.O. v. I.K.A., 2019 ONCJ 962.

5.4.2 Analysis

[112] It was apparent to the court how much the father loves his child.

[113] There was no issue that the child loves the father and that they value their time together.

[114] The child also has close relationships with the father’s extended family and the father’s girlfriend.

[115] The father is very involved with the child’s extra-curricular activities and school. He has gone to many of the child’s medical appointments. He helped arrange speech therapy for the child when it was required.

[116] It is very important for the father that he be a strong role model for the child.

[117] The evidence indicates that the father treats the child well.

[118] The father is able to meet the needs of the child during his parenting time.

[119] The father has historically had significant parenting time with the child.

[120] The father is able to manage his schedule to spend his parenting time with the child.

[121] The parties do not have the necessary level of communication for an equal-parenting plan to be in the child’s best interests, for the multiple reasons already set out in this decision.

[122] However, applying the maximum contact principle, the evidence informs the court that it is in the child’s best interests to increase his parenting time with the father.

[123] The court will increase the father’s parenting time with the child, in the regular parenting time schedule, to two out of every three weekends. He will continue to have overnight parenting time with the child on alternate Wednesdays.

Part Six – Retroactive child support

6.1 – Positions of the parties

[124] The mother is seeking an order for support retroactive to May 1, 2016 – 3 years prior to her application.

[125] The father opposes any claim for retroactive support. He claims that the parties shared parenting of the child and had agreed not to seek support from the other. The father also submitted that the mother did not seek support from him until she started this case and it is unfair for her to seek support for past years at this time.

6.2 – Legal considerations for retroactive/historical orders

6.2.1 General principles

[126] The Supreme Court in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that the court raised:

1. Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.

2. The conduct of the payor parent.

3. The circumstances of the child.

4. The hardship that the retroactive award may entail.

[127] None of the above factors are decisive or take priority and all should be considered in a global analysis (D.B.S. par. 99). In determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor’s interest in certainty must be balanced with the need for fairness and flexibility (D.B.S. – par. 133).

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

[129] In Michel v. Graydon, 2020 SCC 24, the Supreme Court of Canada made the following comments about retroactive, or as the concurring decision framed it, historical support claims:

a) Today, parents know they are liable to pay support in accordance with the Tables and their actual income and that they will be held accountable for underpayment, even if enforcement of their obligations may not always be automatic (par. 130).

b) The obligation to support one’s child exists irrespective of whether an action has been started by the recipient parent against the payor parent to enforce it (par. 79).

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

d) Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations (par. 25).

e) Given the gender dynamics in child support law, legal rules cannot ignore the realities that shape woman’s lives and opens them up to experiences and risks less likely to be experienced by men: like intimate partner violence, a higher proportion of unpaid domestic work accompanied by less work experience and lower wages, and the burden of more childcare obligations (par. 100).

f) Courts must also turn their minds to other forms of marginalization in the courtroom. The gendered dimensions of poverty at different times mirror or obscure its intersections with race, disability, religion, gender modality, sexual orientation and socioeconomic class. The judiciary must take these differences into account and give them their due weight in considering the tests at issue. In the end, a system that can account for the social dynamics which act to impoverish certain members of society over others, or to prevent them from accessing the courtroom and reclaiming their rights, is a fairer system for all (par. 101).

g) The neglect or refusal to pay child support is strongly linked to child poverty and female poverty (par. 121).

h) There is nothing exceptional about judicial relief from the miserable consequences that can flow from a payor’s indifference to their child support obligations (par. 31).

6.2.2 – Delay

[130] Courts should examine whether the reason for delay in bringing the application is understandable, not whether there was a reasonable excuse for the delay. The latter consideration works to implicitly attribute blame onto parents who delay applications for child support (Michel - par. 111).

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

[132] Rather, a delay will be prejudicial only if it is deemed to be unreasonable, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made. A delay motivated by any one of the reasons set out below should generally not be understood as arbitrary within the meaning of D.B.S.:

a) Fear of reprisal/violence from the other parent.

b) Prohibitive costs of litigation or fear of protracted litigation.

c) Lack of information or misinformation over the payor parent’s income.

d) Fear of counter-application for custody.

e) The payor leaving the jurisdiction or the recipient unable to contact the payor parent.

f) Illness/disability of a child or the custodian.

g) Lack of emotional means.

h) Wanting the child and the payor to maintain a positive relationship or avoid the child’s involvement.

i) Ongoing discussions in view of reconciliation, settlement negotiations or mediation.

j) The deliberate delay of the application or the trial by the payor.

These situations raise issues of impracticability and inaccessibility to justice on the one hand, and on the other fear and danger (Michel - par. 86).

[133] It is generally a good idea to seek child support as soon as practicable, but it is unfair to bar parents from applying for the financial support they are due because they put their safety and that of their children ahead of their financial needs or because they could not access justice earlier (Michel - par. 87).

6.2.3 Blameworthy conduct

[134] Courts should apply an expansive definition of blameworthy conduct (D.B.S. - par. 106).

[135] Blameworthy conduct is anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support. (D.B.S. - par. 106).

[136] Courts should not take a subjective approach to blameworthy conduct and try to ascertain intention. Intent can be a basis on which to increase blameworthiness, but the primary focus needs to be on the payor’s actions and their consequences (Michel - par. 118).

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

6.2.4 Circumstances of the child

[138] If there has been a hardship present during their childhood, or if the child needs funds at the time of the hearing, this weighs in favour not only of an award, but also of extending the temporal reach of the award (Michel - par. 120).

[139] Any kind of hardship is not a necessary antecedent to making a retroactive support award. A payor’s support obligation does not disappear when the child no longer requires support. If this factor were to tip the balance against making a retroactive award, then, in essence, the payor will have profited from “holding off” on paying increased child support (Michel - par. 122).

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

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

[142] The fact that the recipient will indirectly benefit is not a reason to refuse to make the retroactive award of support (Michel - par. 123).

6.2.5 Hardship

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

[144] If there is the potential for hardship to the payor, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of hardship (Michel - par. 124).

[145] It must be taken into account that the payor had the benefit of the unpaid child support for the full time in which it was unpaid and such monies may have funded a preferred lifestyle or the very purchase of property which may now need to be sold (Michel- par. 125). This is a crucial part of the equation (Michel - par. 126).

[146] If children have gone without the appropriate level of support it often means that the recipient parent has been forced to go into debt themselves or spend all their monies, not on property, but on the child (Michel – par. 126).

[147] In all cases, hardship may be addressed by the form of payment (Michel - par. 124).

6.2.6 Start date for support

[148] Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility (D.B.S. - par. 5). An earlier date may be appropriate if there is blameworthy conduct by the payor, but generally a retroactive award should not commence earlier than three years before formal notice was given.

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

[150] The date of effective notice is not relevant when a payor parent has engaged in blameworthy conduct (irrespective of the degree of blameworthiness) (Michel - par. 36).

[151] The court in Michel questioned whether it is now time to ask why the retroactivity of child support awards should not also correspond to the date when the support ought to have been paid. Today, parents know they are liable to pay support in accordance with the Tables and their actual income and that they will be held accountable for underpayment, even if enforcement of their obligations may not always be automatic (pars. 130 and 131).

6.3 Analysis

[152] The court has already made a finding that there has never been a shared parenting arrangement as defined by section 9 of the guidelines.

[153] The mother provided reasonable explanations for her delay in bringing this application for support. She was the victim of family violence. She had been very distressed by the criminal and family law cases in 2015. She did not feel that she had the strength to engage in legal proceedings again with the father. She said, “I felt powerless”. She deposed that she felt overwhelmed dealing with him. She feared his reaction if she started a case again and how it might negatively affect her and the child. Her fears that the father would aggressively litigate the case were borne out. She chose instead to try to “humble herself’ to him. The court finds that the mother delayed bringing this action until she found the strength the challenge the father in court.

[154] The father engaged in blameworthy conduct by failing to pay any child support to the mother until July 2019, and only after legal intervention. Due to the degree of the father’s blameworthy conduct, this case falls within the exception from the general principle that retroactive support should start on the date of effective notice.

[155] The circumstances of the mother and the child have been disadvantaged by the failure of the father to pay child support to the mother. She is living on government benefits and on student loans. The student loans will have to be paid back.

[156] A retroactive support order will be inconvenient to the father – it will not be a hardship. The father is a homeowner and owns two cars. He travels frequently, including to Guyana, Nigeria, Japan and the United States in recent years. It would be a hardship for the mother if retroactive support was not ordered. If there is any hardship to the father, it can be addressed through a reasonable payment order.

[157] The father was aware that he had a child support obligation. The mother claimed child support in the 2015 court case. The father should have been aware that he was not meeting his support obligations to the child.

[158] The court also accepts the mother’s evidence that she asked the father for support several times and he refused. She attached a text in response to a request for support (undated) where the father wrote to her: [10]

Taking care of my responsibilities is spending quality time with my child not supplementing your lifestyle.

[159] The court finds that the mother’s request to start support on May 1, 2016 is appropriate. This will be ordered.

Part Seven – The father’s income

7.1 Positions of the parties

[160] The mother asks the court to base the father’s annual support obligation based on the amounts in his line 150 income in his income tax returns. She also asks the court to impute additional income to the father starting in 2019, for a total annual income of $81,689. She claimed that the father should be renting out the basement of his home. She also claimed that the father had been earning money day trading in stocks, but had stopped doing this once this case began.

[161] The father has had the same job for 21 years and is a T4 employee. The income he earns from his employer is not in dispute.

[162] The father opposed any imputation of his income. He also submitted that line 150 of his income tax returns does not always reflect his actual income, since he has union dues and carrying costs, interest charges and business investment losses arising from his stock trading that he is entitled to deduct from his income. [11]

[163] The father also denied renting out the basement of his home and claimed that it was not an appropriate rental unit.

7.2 Legal considerations for imputing income

[164] Section 19 of the guidelines permits the court to impute income to a party if it finds that the party is earning or is capable of earning more income than they claim, or if they are not reasonably utilizing property to generate income.

[165] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli.

[166] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322.

7.3 The father’s deductions from his income

[167] The father is right that he is entitled to deduct his union dues from his income. See: Section 1 of Schedule 111 of the guidelines.

[168] The father is also right that he is entitled to deduct his carrying charges and interest expenses incurred in borrowing money for stock trading. See: Section 8 of Schedule 111 of the guidelines.

[169] The father is also entitled to deduct business investment losses in a taxable year. See: Section 7 of the guidelines.

[170] The court will make these deductions in determining the father’s annual income in each year. [12]

7.4 Should income be imputed to the father?

[171] The mother asks to impute income to the father since he stopped day trading in 2019 when this case began. Her position is that he is capable of earning income from this activity.

[172] The court will not do this. The father already works full-time. He has no obligation to earn additional income day trading in stocks. Day trading is also a very risky enterprise. There are no assurances for a day trader – they can just as easily lose as make income.

[173] The court will also not impute income to the father on the basis that he should rent out the basement of his home. There is no evidence that he has rented the basement since 2015. The court accepts the father’s evidence that the basement is not suitable as a rental unit. It does not have its own entrance or have egress windows. It does not have a vent for the kitchen. The father has set up the basement as a play area for the child. That is a reasonable use of the basement.

[174] The court finds that the mother did not meet her onus to impute any of the additional amounts she sought to the father’s income.

Part Eight – Calculation of the father’s support obligations

8.1 – Retroactive support obligation

[175] The father’s 2016 income, based on his notice of assessment, was $55,798. The guidelines table amount for one child was $506 each month. The total amount of the father’s support obligation for 7 months in 2016 was $3,542.

[176] The father’s 2017 income was $65,448. The guidelines table amount for one child for the first eleven months of 2017 was $598 each month. The guidelines table amounts changed as of November 30, 2017. The guidelines table amount for one child was $609 in December 2017. The total amount of the father’s support obligation in 2017 was $7,187.

[177] The father’s 2018 income was $54,285. The guidelines table amount for one child was $501 each month, for a total 2018 support obligation of $6,012.

[178] The father’s 2019 income was $52,089. The guidelines table amount for one child was $480 each month. Five months of support accumulated before the mother started her application in 2019, for a total of $2,400.

[179] To summarize, the court finds that the father owes the mother $19,141 for retroactive support, up until May 31, 2019, as follows:

2016 – $3,542

2017 – $7,187

2018 – $6,012

2019 – $2,400

Total – $19,141

8.2 – Prospective support obligation

[180] The father’s monthly support obligation for 2019, based on his income of $52,089 was $480 each month, starting on June 1, 2019.

[181] The father did not provide any documentation about his 2020 income, despite the financial disclosure orders. The father testified that he missed four months of work in 2020 due to a medical issue. [13] He said that he received disability payments. He provided no evidence of this medical issue or whether he had a reduction of income in 2020. It was his responsibility to provide such disclosure. The court will not reduce his income for 2020 and will attribute to him the same employment income that he earned in 2019.

[182] The father testified that he made $5,000 at the end of 2020 in a stock trade. He said that this was the only stock trade he made and that he does not own any other stocks or stock options. It is noteworthy that this information only came out after the father was questioned by the court. He did not disclose that information before the trial despite financial disclosure orders.

[183] The $5,000 earned from the stock trade will be added to the father’s 2020 income, but not to his ongoing income for support purposes.

[184] The father’s income for 2020 is assessed at $57,089 for support purposes. The guidelines table amount of child support for one child was $528 each month.

[185] Starting on January 1, 2021, the father’s annual income will be assessed again at its 2019 level of $52,089 and he will pay the guidelines table amount of child support for one child of $480 each month.

[186] The father began paying the mother $250 each month for support in July 2019. He paid this amount until Justice Zisman made her first temporary support order, effective November 1, 2019. The Family Responsibility Office shall credit the father for these payments for 5 months ($1,000), if it has not already done so.

[187] Otherwise, the father shall be credited for support payments made starting on November 1, 2019, but only as reflected in the records of the Family Responsibility Office. [14]

Part Nine – Payment of arrears

[188] This order will create significant arrears for the father. To alleviate any hardship, he shall be permitted to pay the arrears at $500 each month starting on April 1, 2021. However, if he is more than 30 days late in making any ongoing or arrears payment, the entire amount of arrears then owing, shall immediately become due and payable.

Part Ten – Conclusion

[189] A final parenting order shall go as follows:

a) The mother shall have final decision-making responsibility for the child.

b) The child shall have his primary residence with the mother.

c) The mother shall inform the father with respect to any major decision regarding the child. She shall advise him of the contemplated decision in writing and within 7 days the father shall provide her with his view. If the parties do not agree, the mother will make the final decision.

d) The father may obtain information directly from the child’s teachers, doctors, or other service providers. The mother shall execute any authorizations or consents to permit the father to do this.

e) In addition to the holiday time set out in paragraphs 4-12 of the November 12, 2020 order of Justice Zisman, the father shall have parenting time with the child as follows:

i) Starting on Friday, March 5, 2021, two out of every three weekends, from Friday at 6 p.m. until Monday at 6 p.m. The father will have parenting time with the child for two consecutive weekends, followed by the child spending one weekend with the mother.

ii) Starting on Wednesday March 10, 2021, overnight from Wednesday at 6 p.m. until Thursday at 6 p.m.

iii) The father will drop off the child at school, when school is in session. When school is not in session, exchanges shall take place at 6 p.m. in the lobby of the mother’s apartment. The mother will wait in the lobby. The father will open the lobby door and let the child enter the lobby. The father will deposit the child’s belongings in the lobby. The father shall not otherwise enter the lobby of the building.

iv) Thirteen consecutive parenting days during the month of July and 13 consecutive parenting days during the month of August each year. For all the other days in the months of July and August each year (when the child is not in the care of the father) as specified, the child shall be in the care of the mother.

v) The parties shall agree by May 31st of each year as to the dates for the father’s summer schedule. The mother shall have her first choice of her summer days in odd-numbered years and the father shall have his first choice for his summer days in even-numbered years.

vi) Specified time on holidays shall take priority to the regular parenting schedule.

f) Either parent may travel with the child outside the country during the time when the child is in their care without the requirement for the other parent’s prior written consent. The traveling parent shall provide the non-traveling parent with itinerary details for the trip and emergency contact information. The traveling parent shall notify the non-traveling parent not less than 30 days prior to the intended travel.

g) The communication terms set out in paragraphs 1-3 of the final order of Justice Zisman shall continue.

[190] A final child support order shall go on the following terms:

a) The father owes the mother $19,140 for retroactive support up until May 31, 2019, as calculated in this decision.

b) Starting on June 1, 2019, the father shall pay the mother $480 each month for child support. This is the guidelines table amount for one child, based on the father’s 2019 income of $52,089.

c) Starting on January 1, 2020, the father shall pay the mother $528 each month for child support. This is the guidelines table amount for one child, based on the father’s 2020 income, assessed by the court at $57,089.

d) Starting on January 1, 2021, the father shall pay the mother $480 each month for child support. This is the guidelines table amount for one child, based on the father’s 2021 income, assessed by the court at $52,089.

e) The father shall be credited for the $1,000 he paid for support between July 2019 and September 2019, less any amount that the Family Responsibility Office may have already credited him for these payments during this period.

f) The father will be credited with all support paid after November 1, 2019, but only as reflected in the records of the Director of the Family Responsibility Office.

g) The father may pay the arrears created by this order at $500 each month, starting on April 1, 2021. However, if he is more than 30 days late in making any ongoing or arrears support payment, the entire amount owing at the time shall immediately become due and payable.

h) Nothing in this order precludes the Director of the Family Responsibility Office from collecting arrears from any government source (such as income tax refunds) or from any lottery or prize winnings).

i) The Director of the Family Responsibility Office is asked to adjust its records in accordance with this order.

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

k) A support deduction order shall issue.

[191] If either party seeks costs, they shall serve and file written submissions by March 16, 2021. The other party will then have until March 30, 2021 to serve and file their written response (not to make their own costs request). The submissions shall not exceed 3 pages, not including any bill of costs or offer to settle. They are to be either delivered or emailed to the trial coordinator’s office.

[192] The court thanks the parties and counsel for the mother for their civility during this trial.

Released: March 2, 2021

Justice S.B. Sherr

Footnotes

[1] Although she is the respondent, the mother was the party who brought this application.

[2] This agreement was not reduced to writing or incorporated into a court order.

[3] The amendments refers to all changes made to the Act by the Moving Ontario Family Law Forward Act, 2020 – provisions that amend, repeal or re-enact provisions in the Act as well as provisions that add new provisions to the Act.

[4] These definitions of decision-making responsibility, parenting time and contact are set out in subsection 18 (1) of the Act, as re-enacted by the Moving Ontario Family Law Forward Act, 2020.

[5] Subsection 18 (1) of the amendments defines family violence as follows:

“family violence” means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct.

[6] See: Subsection 24 (4) of the amendments.

[7] There are complex arguments to be made regarding statutory interpretation, including the application of the Legislation Act, 2006, to determine this issue.

[8] The mother did not deny drafting the agreement. However, she said the parties never completed it or acted upon it.

[9] Section 9 of the guidelines reads as follows:

Shared custody

9 Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared custody arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[10] The father did not deny sending this text to the mother.

[11] The father explained that he has borrowed money from the bank to day trade in stocks and that he deducts the interest on those loans.

[12] The father made some money in the years he engaged in stock trading. He did not incur losses that would have resulted in his annual income being lower than he received from his employer.

[13] This only came out when he was questioned by the court.

[14] The court was not provided with an updated Statement of Arrears from the Family Responsibility Office. It is always helpful for the court to have this information when doing these calculations.