ONTARIO COURT OF JUSTICE

DATE: September 14, 2021 COURT FILE No.: D40799/20

BETWEEN:

Tamara Batista de Oliveira Applicant

— AND —

Jardel Bispo de Oliveira Respondent

Before: Justice Roselyn Zisman

Heard on: August 26, 2021 Reasons for Judgment released on: September 14, 2021

Counsel: Olivia Oprea, for the applicant Danny M. Bertano, for the respondent

Decision on temporary motion

Zisman, J.:

Background

[1] This is a motion by the Applicant (mother) and cross-motion by the Respondent (father) with respect to decision making responsibility, parenting arrangements, child support and spousal support.

[2] The parties are the parents of two children Joaquin Antonio Batista Oliveira born […], 2014 and Munique Josephine Batista Oliveira born […], 2019.

[3] The parties were in a common law relationship from about 2001 to January 8, 2020 when they separated physically. Both parties agree that from January 2019 to January 2020 they lived in the same residence but were not in a conjugal relationship.

[4] The parties are both citizens of Brazil and Portugal. They met in Brazil and began living together in 2001 and then moved to Spain for a few months and then to Portugal. In about 2012, the parties moved to Canada as the father felt there would be better employment opportunities here.

[5] Neither party has immigration status in Canada. Both parties have applied for permanent residency on humanitarian and compassionate basis.

[6] The mother has never worked in Canada. The mother deposes that the father was physically and emotionally abusive, financially controlling and would not financially support her to attend school. Whereas, the father denies being abusive or controlling. It is his position that the mother was not interested in going to school or working despite him encouraging her to do so.

[7] The father, despite his lack of immigration status, has worked in the construction industry and has steadily increased his income. However, given his lack of status until recently he has not filed any income tax returns.

[8] The parties’ child Joaquin was born […], 2014.

[9] Due to the abusive relationship, the mother alleges she had to leave the home in November 2016. The mother went to a shelter with the child but returned the next day.

[10] On November 17, 2016 the parties with the assistance of counsel entered into a temporary agreement. The agreement provided that the father pay spousal support of $2,000 for 4 months, that the mother make reasonable efforts to obtain employment as soon as possible and that the parties move out of their current residence by February 1, 2017, The agreement also stipulated that the father continue to pay for Joaquin’s daycare until January 2017 and that the father have day access several times a week. The parties and counsel were to meet in March 2017 to further negotiate terms.

[11] Both parties allege that the other party did not fulfill the terms of the agreement.

[12] The mother left for Brazil with Joaquin in June 2017 and returned May 2018. The mother wished to return to Brazil temporarily so she would have the support of her friends and family. She states that while there she was not feeling well physically or emotionally. The father encouraged her to go to Brazil as he could not afford to pay for separate residences if the mother did not work.

[13] The mother then returned to Canada. According to the father, she returned unexpectedly. Shortly thereafter, she became pregnant with their daughter Munique who was born […], 2019.

[14] The Catholic Children’s Aid Society of Toronto (CCAS) became involved with the family in early 2019 due to concerns reported by the school social worker about Joaquin’s behaviour at school and his reports about the domestic conflict in the home.

[15] As of September 2019, Joaquin had ongoing school attendance issues. He was only attending school once or twice a week and he was often late. Despite the fact the family lived only around the corner from the school, the school arranged a school bus. His attendance did not improve. When he had behavioural issues at school, the mother was called and took him home although the school encouraged her not to take him home but to encourage him to stay at school.

[16] The father alleged that contrary to the mother’s allegations that he was abusive to her, the father alleged that it was the mother who was abusive to him. He alleged that the mother was unable to control her anger and she would yell at him and Joaquin and physically assault them both.

[17] In a meeting with the CCAS on January 7, 2020 the father showed the society worker 3 videos he had taken of the mother assaulting Joaquin. The society worker notified the police. The mother was charged with 1 count of assault and 1 count of assault with a weapon against Joaquin and 2 counts of assault with a weapon against the father.

[18] As of January 8, 2020, both children have remained in the care of the father. The CCAS has now closed its file as it has no protection concerns about the father.

[19] The mother commenced video chats with the children on April 15, 2020. The calls needed to be facilitated by a third party due to the mother’s release terms. On May 1, 2020, the third party caregiver was no longer prepared to facilitate the calls due to the mother’s behaviour.

[20] The CCAS began to supervise in person visits between the mother and Munique as of September 2020 and had no concerns about her interaction. The society supported unsupervised visits.

[21] The parties entered into a consent order on March 15, 2021 that the mother have unsupervised parenting time with Munique every Sunday from 10:00 am to 5:00 pm with exchanges at the mother’s residence.

[22] The father was clear that he wished supervised visits between the mother and Munique. But as the CCAS did not feel this was necessary and the supervised access centres were closed due to COVID, he agreed to unsupervised day access.

[23] The mother has not had any virtual or in person parenting time with Joaquin who refuses to have contact with her. Joaquin’s psychologist does not support him having contact with his mother at this time

[24] At the case conference held on May 26, 2021 the court was advised that all charges against the mother were withdrawn due to the mother’s mental health issues and to avoid Joaquin having to testify. No further details have been provided to the court with respect to what reports were presented to the Crown attorney that resulted in the charges being withdrawn.

[25] With respect to support issues, the mother’s current source of income is Ontario Works. She has not paid any child support to the father or paid anything towards the children’s section 7 expenses.

[26] The father was recently advised that despite not having a social insurance number he could file his income tax return with a temporary tax number.

[27] The father has now filed his 2020 tax return. His gross income was calculated to be $198,991.16 less expenses of $84,183.87 for the cost of goods and subcontractors for a net income of $114,807.29. Further business expenses of $84,262.06 result in a taxable income of $78,737.06.

Position of the parties

[28] The mother seeks joint decision making responsibilities regarding the children.

[29] With respect to Munique she seeks an order for every week-end from Fridays to Sundays and as of September 13th from Mondays to Fridays and alternate week-ends with exchanges at her residence.

[30] With respect to Joaquin she seeks an order that as of September 4th, on a weekly basis parenting through a Nurturing Parenting Program run by Brayden Supervised Services, subject to their availability and its recommendations. As of October 1st the mother seeks parenting time each Saturday at 10:00 am to Sunday at 7:00 pm

[31] The mother seeks an order that the father pay spousal support [1] based on his imputed income of $250,000, the mother’s OW income of $8,796 and father’s section 7 expenses of $15,000 for childcare and $4,280 for psychological services for Joaquin. This results in monthly spousal support in the range of $2,992, $3,490 and $3,989 with no child support payable by the mother.

[32] The father seeks an order of sole decision making responsibility. He seeks that the current status quo regarding parenting time with Munique remain and that there be no parenting time with Joaquin at the present time.

[33] With respect to support, the father seeks an order that minimum income be imputed to the mother. He seeks an order that spousal support be based on his income of $114,808. He proposes that the lower end of spousal support be ordered to compensate the father for the cost of therapy for Joaquin that he has incurred as a result of the abuse inflicted upon him by the mother and the fact that he will have to bear the financial burden of paying for the majority of the children’s section 7 expenses.

[34] Based on the Divorcemate calculations submitted by the father that include therapy costs of $4,280 and childcare costs of $15,600 the range of monthly spousal support would be $767, $895 and $1,023. Based on higher childcare costs of $19,277, the range of monthly spousal support would be $653, $762 and $870.

Issues to be determined

[35] The issues for the court to determine are therefore;

1. What orders are in the children’s best interests with respect to decision making responsibilities and parenting arrangements?
2. What child support order should be made? Should income be imputed to either parent?
3. Is the mother entitled to temporary spousal support and if so, on what basis and in what amount?

Applicable law with respect to parental decision making responsibility and parenting time

[36] The mother commenced this Application on October 29, 2020. However due to the suspension of regular court services as a result of Covid-19 the first appearance date was not scheduled until March 12, 2021. The parties were granted an early case conference date of February 1, 2021.

[37] The court proceeded on the basis that the amendments to the Children's Law Reform Act, (CLRA) known as the Moving Ontario Family Law Forward Act, 2020, that came into effect on March 1, 2021, applied to this case despite the fact that the Application was issued prior to that date.

[38] In the recent case of O’Brien and Chuluunbaatar [2] the Ontario Court of Appeal in the context of a decision about mobility confirmed that the new amendments should apply to ongoing cases commenced prior to the amendments.

[39] The court noted that although the Divorce Act had explicit transition provisions and the CLRA did not, it simply made common sense that the amendments would apply to ongoing cases.

[40] The court stated at paragraph 42 of its decision:

Unlike the Divorce Act , the CLRA does not contain an explicit transition provision governing the amendments. However, in my view, the CLRA amendments must also apply to any ongoing proceedings when they came into force on March 1, 2021. Common sense dictates that the parallel amendments in the Divorce Act , governing parenting orders for children on married parties, and the CLRA , governing parenting orders for children of non-married parties, operate in the same fashion.

[41] I adopt this approach. In this case whether the new amendments or the former criteria in subsections 24 the CLRA were applied the decision would be the same.

[42] Subsection 18(1) of the CLRA, as amended, defines decision-making responsibilities as follows:

“decision-making responsibility” means 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;

[43] Subsection 20 of the CLRA further provides 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 .

[44] Subsection 24 of the CLRA addresses the best interests of the child. It provides 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.

[45] Subsection 28 of the CLRA sets out the different types of parenting orders that a court can make. The relevant subsections of section 28 for this case are (1), (4), (5), (6), (7) and (8). They provide as follows:

Parenting Orders and Contact Orders

28 (1) The court to which an application is made under section 21,

(a) may by order grant,

(i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2),

(ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or

(iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);

(b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and

(c) may make any additional order the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

Allocation of decision-making responsibility

(4) The court may allocate decision-making responsibility with respect to a child, or any aspect of it, to one or more persons.

Allocation of parenting time

(5) The court may allocate parenting time with respect to a child by way of a schedule.

Parenting time, day-to-day decisions

(6) Unless the court orders otherwise, a person to whom the court allocates parenting time with respect to a child has exclusive authority during that time to make day-to-day decisions affecting the child.

Parenting plan

(7) The court shall include in a parenting order or contact order any written parenting plan submitted by the parties that contains the elements relating to decision-making responsibility, parenting time or contact to which the parties agree, subject to any changes the court may specify if it considers it to be in the best interests of the child to do so.

Right to ask for and receive information

(8) Unless a court orders otherwise, a person to whom decision-making responsibility or parenting time has been granted with respect to a child under a parenting order is entitled to ask for and, subject to any applicable laws, receive information about the child’s well-being, including in relation to the child’s health and education, from,

(a) any other person to whom decision-making responsibility or parenting time has been granted with respect to the child under a parenting order; and

(b) any other person who is likely to have such information.

[46] Subsection 33.1 (2) of the CLRA addresses the importance of the parties protecting children from conflict. It provides as follows:

33. 1 Protection of children from conflict

(2) A party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding.

[47] It is important to note that these are temporary motions. Although both parties filed several affidavits with society case notes, reports of psychologists and other therapists, the court on temporary motions must make decisions that are based on untested evidence. At this stage of the proceedings, the court does not conduct the kind of in depth analysis that would occur at a trial. At this stage the parties are not subject to cross-examination and none of the evidence has been scrutinized to the extent that if would be if this matter proceeds to trial.

[48] On a temporary motion, the court is required to ensure that there is a reasonable and short-term remedy in place to meet the needs of the children until there is a trial or settlement.

Application of legal principles to facts regarding parenting issues

[49] In determining the best interests of a child, the court is required to consider all of the factors related to the circumstances of the child and in so doing give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing.

[50] I have considered all the factors outlined in section 24 the CLRA as they pertain to the facts of this case.

[51] I consider the most pertinent factor in determining what decision making responsibilities and parenting time in this case is the conflict and violence between the parties that the children were exposed to and the violence by the mother against the child Joaquin.

[52] These parties have an extensive history of conflict that both children have been exposed to. Both parties allege that the other has been abusive. After the mother was criminally charged with assaults against Joaquin, she made allegations that the father abused him also. Based on the timing of these allegations I do not find them credible.

[53] There is video evidence that the mother assaulted Joaquin. The father in his affidavit has outlined many specific instances of the mother yelling at the child, dragging him across the floor, kicking him, slapping him and hitting him with a belt. The father also outlines incidents of the mother yelling and hitting the father while holding Munique and in Joaquin’s presence.

[54] It remains unclear if the mother fully accepts responsibility for her actions and the effect they have had on Joaquin. Initially, the mother alleged that the videos were fake and that they did not show what happened before or after the incidents being videoed by the father.

[55] The mother has participated in counselling with the Barbara Schlifer Clinic and the Elizabeth Fry Association. She has engaged in a parenting program that has an anger management component and individual counselling regarding trauma. However, the counselling appears to primarily deal with the mother as a victim rather than as a perpetrator of abuse.

[56] A letter from Elizabeth Fry Toronto dated August 3, 2021 was filed with the court that confirmed the mother has attended a 3 session program for Anger Management where themes were discussed regarding coping with anger, understanding anger and how trauma impacts anger.

[57] The mother also participated in an assessment dated December 4, 2020 by Dr. Reena Chopra, a clinical psychologist. Although the mother had been charged with assaults against Joaquin, the mother does not discuss this during the assessment but only speaks about the father being abusive to her. The mother reports that the father goaded her in front of their son by saying the mother likes to be abused and encouraged their son to hit her and grab her breasts when she was breastfeeding Munique.

[58] Dr. Chopra, as part of her assessment, spoke to 2 people identified only by their initials who allege that the father abused the mother, that the father used corporeal punishment against Joaquin and that they had never seen the mother hit the child. Neither of these people filed affidavits on these motions.

[59] Whereas a boarder who lived in the parties’ residence filed an affidavit on behalf of the father confirming that he had seen the mother yelling, arguing and screaming at the father and yelling at Joaquin and inflicting unreasonable punishment and physical aggression against the child.

[60] Dr. Chopra also viewed several videos taken by the father. Although she had a Portuguese interrupter assist her for the interviews with the mother, she did not use an interpreter for the videos. Dr. Chopra therefore states that she did not understand what is being said on the videos. Further, despite viewing the mother yelling, striking the child and dragging him, Dr. Chopra’s focus is on the child yelling and screaming and throwing things at the mother.

[61] Dr. Chopra also raises issues about the father continuing to video these scenes without intervening or comforting the child. The father disputes this as he states that he did comfort the child but as Dr. Chopra did not understand Portuguese, she did not appreciate he was trying to calm the mother down and comfort the child.

[62] Dr. Chopra reviewed the transcript of the father advising the police that he videoed these incidents so he could show the mother how she was acting and to affect change in her behaviour. Dr. Chopra suggests that there is some research that the use of technology, specifically electronic technology can be a form of abuse and a means of maintaining power and control. She therefore seems to be implying that the father videotaping the mother was a form of ongoing abuse to the mother. Dr. Chopra does not reflect on the impact of the mother’s behaviour on the child.

[63] In his affidavit, the father confirms that despite the mother knowing he was videotaping her, she could not stop her behaviour. He confirms that he wanted to show the mother how she was acting so she would seek treatment or take some action to change her behaviour.

[64] The father also states that without such evidence he was aware that it would be his word against the mother about her abuse of the child and himself. The mother had threatened him that she would call the police as a means of controlling him and preventing him from reporting her behaviour. The mother had already made false allegations about his use of alcohol and drugs. He was afraid that if he tried to physically restrain the mother, he would be accused of assaulting her.

[65] When the father was interviewed by the society and showed the worker the video recordings, he was trying to defend himself as after meeting with the mother the society had verified domestic violence. He was unaware the society would then report this matter to the police.

[66] Dr. Chopra assessed that the mother suffers from “post-traumatic stress disorder with panic, complex.” She opined that the mother’s emotional distress and psychological distress and psychological diagnosis is a direct result of the violence within her relationship with the father with significant vulnerability from her childhood experiences.

[67] Dr. Chopra further states that she provided the mother with some psychoeducation around the nature of traumatic symptoms, but in view of her very limited psychological mindedness it was unclear how much she was able to understand. She recommended that the mother engage in treatment with a psychologist or psychotherapist well-versed in the provision of evidence-based treatment of post-traumatic stress disorder as well as the nature of complex presentation of post-traumatic stress disorder.

[68] There is no evidence that any of the counsellors that the mother has received services from have the experience or are conducting the type of counselling recommended. Further, given Dr. Chopra’s concerns about how much the mother can understand, it remains unclear as to how much the mother has benefited from the counselling she has received.

[69] The assessment of Dr. Chopra raises some concerns even on these temporary motions as to the full extent of her knowledge of all the background facts and the assumptions she makes. Most concerning is that she appears to be enabling the mother not to assume full responsibility for her verbal and physical inappropriate behaviour towards Joaquin.

[70] After January 2020, the father sought the assistance of the society in finding a Portuguese psychologist to provide therapy for Joaquin. The society was unable to locate a Portuguese psychologist but the father was able to do so.

[71] As of March 2020, the society worker sought to obtain the mother’s consent for the child to begin therapy. The mother resisted and then disputed that the society worker had been trying since March to obtain her consent. It was not until August that the mother provided her consent. Accordingly, there was a delay of about 6 months before the child’s therapy could commence.

[72] Dr. Valda Lopo, a registered psychologist with Integrated Clinical and School Psychology, began to provide therapy for Joaquin. She provided a letter dated October 4, 2020 stating that the child suffers from severe fear and clinically significant separation anxiety, fear of the unknown, unfamiliar places, closed rooms and being alone. She strongly recommended that Joaquin not have contact with his mother.

[73] Dr. Lopo states as follows:

As Joaquin’s mental health clinician, I strongly recommend no contact between Joaquin and Ms Oliveira until he is psychologically able to face the person who abused him psychologically and physically.

In my professional opinion Joaquin is not ready to meet or participate in dialogue with Ms Oliveira. Joaquin requires ongoing treatment to deal with the trauma he had suffered. Any intervention that he has with Ms. Oliveira will lead to regression in his small psychological gains and would expose Joaquin to further trauma. It is my opinion that visitation between Joaquin and Ms Oliveira is not in his best interests. The need to protect this six-year-old boy from further harm should supersede any other adult interest.

[74] Dr. Lopo filed a formal report dated May 2, 2021 with the court. The report was based on interviews with the father, the child’s caregiver, direct observations during treatment sessions, that were occurring on a weekly or bi-weekly basis, and completion of specific symptom-rating checklists.

[75] Dr. Lopo suggested to the society that it would be beneficial to meet with the mother before commencing the information gathering process but that interview never took place.

[76] Dr. Lopo worked with Joaquin on his symptoms of anxiety, negative self-perception, low self-esteem, hyperactive behaviours, and widespread pain coping strategies within the various approaches she used in his therapy.

[77] In one session when asked if he missed his mother, he stated that, “I am afraid of her, she hits me and I don't want to see her.”

[78] Dr. Lopo reported that Joaquin had made good progress in his play therapy. He showed no aggressive behaviours and was self-directed. He was compliant with the therapy. He was attached to his father’s new partner. He was doing better in school and had well-established routines in the home.

[79] With respect to reunification with his mother, Dr. Lopo stated:

Eventually, reunification with his mother will take place. The process of “reunification” involves developing and implementing terms for deciding how or when to restore this relationship. There is a positive aspect of children having contact with their parents. Of course, if the offending parent is no longer abusing the child. The process for Joaquim [3] has to be wisely planned given the above information. Joaquim still holds a lot of negative feelings towards his mother and we cannot allow the desire of the mother to see him to bypass Joaquim’s best interests. The concern is that Joaquim is still not in total control of his emotions, impulses and behaviours; he is still very fearful and unsure as to whether his mother will harm him again. We must respect Joaquim’s progress to date and the time it has taken him to get to where he is today psychologically. When it becomes time to reunify Joaquim with is mother, it must be done very slowly. Joaquim must first learn to accept the idea that this may happen. This process should be monitored and under the supervision of professionals who can facilitate it.

The goal should still be to facilitate Joaquim’s healing and psychological adjustment. His mother should be given the opportunity to take responsibility for her actions, to apologize and to make it clear to Joaquim that he was not responsible for the abuse (this should be the first step).

[80] Dr. Lopo then poses further questions that need to be addressed by the mother as pre-conditions to the reunification process. She opines that when it is time for Joaquin to have a face to face meeting, it should be in a familiar place where Joaquin feels safe. The amount of time must be in small increments and must be supervised.

[81] Counsel for the mother spoke to Dr. Lopo and then sent her an email on May 6, 2021 to request that the mother have a discussion with her. Dr. Lopo responded immediately indicating that she sent the mother an email, in English and Portuguese stating that the mother can contact her at any time.

[82] The mother did not contact Dr. Lopo. The only explanation offered is that she did not have $220 to pay Dr. Lopo’s hourly rate but this appears to be about trying to contact Dr. Lopo after receiving her October 2020 report. The mother does not explain why she again did not contact Dr. Lopo after the most recent email to her. The mother is then critical of Dr. Lopo’s reports as they do not include any information from herself.

[83] The mother proposes that reunification with Joaquin take place through a program by Brayden Supervised Services but does not explain how she will have the funds to pay for this program except through an order of spousal support

[84] It is extremely concerning that the mother did not treat meeting or speaking with Dr. Lopo as a priority.

[85] On August 18, 2021 Dr. Lopo prepared a further letter regarding Joaquin. Dr. Lopo states that she told him during their last 2 sessions that his mother wishes to see him. His response was that he did not want to see her. When Dr. Lopo brought it up again he stated that, “You are forbidden to talk to me about this again, or I will leave the room.”

[86] Dr. Lopo stated that she understood the importance of children having contact with their parent. When she told Joaquin that his mother had written a letter of apology to him he stated that, “No I won't forgive her for what she did to me.”

[87] Dr. Lopo stated that she was prepared to facilitate reunification between Joaquin and his mother but he is not ready to begin that process at this time.

[88] Dr. Lopo opined that:

Based on the above and my observations of Joaquim’s behaviour during sessions, he remains severely apprehensive and fearful of his mother. On this basis, I strongly recommend no contact between Joaquim and his mother until he is psychologically prepared and willing to do so. At this time, any attempt to force him to have any contact with his mother will cause Joaquim to incur significant psychological distress resulting in regression of his gains to date.

It is important to note that Joaquim has made significant therapeutic progress. He is now playing with friends, going to birthday parties, going to the park with his father and partner. Since he started to take ADHD medication, he is calmer, more focused and able to talk about his feelings openly. We need to respect his time as he has dealt with much emotional trauma. Reuniting with his mother is difficult for him, and it is my professional opinion that we need to respond to his time and readiness.

[89] In addition to Joaquin dealing with the trauma he has suffered, he has been diagnosed with ADHD. Although he is doing better academically, he requires further assistance. The father hired a speech and language consultant to assist him. The school is now arranging for Joaquin to attend for speech therapy without charge.

[90] Joaquin has also been referred to Holland Bloorview for a further development assessment.

[91] The parties do not have a history of being able to communicate either before or after their separation. In view of Joaquin’s special needs there are decisions that will need to be made with respect to his education, medical needs and other supports.

[92] When asked to consent to Joaquin obtaining counselling, the mother delayed for almost 6 months. She recently even questioned why the father was allowed to have a birthday party for Joaquin. After a recent visit, she failed to advise the father about how Munique was injured during her visit.

[93] The father has been the parent since the children have been in his primary care to make reasonable and necessary decisions for both children. He has ensured that Joaquin attend school regularly and obtain the help he needs. He has arranged for both children to have a consistent routine in the home something that the mother was unable to provide.

[94] I find that there is a lack of any ability of these parents to communicate. The past conflict and violence between the parties and the current tension, distrust and animosity between them is too high to permit any meaningful cooperative decision making ability. It is in the best interests of both children that the father has sole decision making responsibilities.

[95] The father indicated that he was prepared to consult with the mother about any future decisions. But after considering the views of the mother, he wishes final decision making authority. However, given the delay in the mother’s consent regarding Joaquin’s counselling the mother will be required to advise the father of her opinion within 7 days. The mother will also have the ability to obtain any information she wishes directly from the school, doctors or other service providers.

[96] With respect to parenting time, the children are doing extremely well in the father’s care. The father has been able to provide them with continuity and stability and not expose them to any further conflict.

[97] The CCAS letter of April 23, 2021 indicates that the society is closing their file. The letter states that there are no protection concerns and that both children are thriving in the father’s care.

[98] With respect to Joaquin, he has been clear that at this time he does not wish to resume any contact with his mother. His counsellor Dr. Lopo has confirmed that it would be harmful to his wellbeing and to the progress he has made for him to be forced to resume contact with his mother.

[99] I find that the proposal by the mother would be detrimental to Joaquin’s safety, security and wellbeing. I find that forcing him to resume contact with his mother at this time would threaten his security and stability and is therefore not in his best interests.

[100] With respect to Munique, the mother is essentially requesting that she be placed in her primary care. Although there are no significant concerns expressed in the day visits being exercised by the mother, Munique is almost at the age when the mother began to abuse Joaquin. Although the mother has been involved in counselling, it is still not clear if she has been able to fully change her parenting methods or control her anger.

[101] Given the mother’s treatment of Joaquin it is natural that the father would have concerns about expanding the mother’s parenting time with Munique.

[102] Both children have adjusted to the present routine. Both children are close to each other.

[103] It was submitted that when Joaquin is at school rather than be cared for by a third party, the mother is available to offer that care. I have considered this proposal but I find that at the present time, the current arrangements should be continued.

[104] Although Joaquin will be attending school in September, in view of the uncertainly and raising numbers of people contracting Covid it is likely that there will be days when he is required to remain home. I am concerned that it may cause him to regress further if he understands that Munique is spending more time with the mother. This issue has not been addressed by Dr. Lopo and I find that it would be important to obtain her guidance.

[105] I am also concerned that the mother has not provided any details about how she spends her day with Munique or a plan about how she would spend any expanded time with her.

[106] Munique requires a routine especially as she will be starting school in the next school year. There is evidence that the mother frequently slept in and had no routine for Joaquin that resulted in him not attending school, being late and not being able to adjust to the school routine.

[107] It is important for Munique’s future success that if the mother spends more time with Munique that she can provide her with a routine and structure. There is no evidence before me on these motions that she can do this at this time.

[108] Accordingly, I find that it is in the best interests of both children that they continue to reside in the primary care of the father. The mother’s parenting time will continue to be on Sundays from 10:00 am to 5:00 pm.

[109] At present the parties are sharing the transportation. I see no reason why the mother should not assume full responsibility for the exchanges to occur at the father’s residence. At the present time, the mother will not have any contact with Joaquin. The parties may agree to further parenting time, virtual or in person, in consultation with Dr. Lopo.

Imputing income

[110] In order to determine the amount of child support payable by the mother and the amount of spousal support payable by the father it is necessary to determine their respective incomes and determine if income should be imputed to either or both of them.

[111] The law with respect to imputing income is well settled. Section 19(1)(a) of the Child Support Guidelines provides as follows:

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

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

[112] The Ontario Court of Appeal in Drygala v. Pauli [4] interpreted this clause to indicate that there is no need to find a specific intent to evade child support obligations before income can be imputed. There is no element of bad faith. A parent is intentionally unemployed where he or she chooses not to work when capable of earning an income.

[113] The court further held that, in consideration of what income should be imputed, a court should consider what is reasonable in the circumstances. Factors to be considered are age, education, experience, skills and health of the parent, availability of job opportunities, and the number of hours that can be worked in light of the parent’s overall obligations including educational demands and the hourly rate that a parent could reasonably be expected to obtain.

[114] In C.R. v. I.A. [5] Justice Blishen specifically noted:

By imputing income, the court is able to give effect to the legal obligation on all parents to earn what they have the capacity to earn in order to meet their ongoing legal obligation to support their children. Therefore, it is important to consider not only the actual amount of income earned by a parent, but the amount of income they could earn if working to capacity (Van Gool v. Van Gool (1998), 166 D.L.R. (4th) 528 ).

Should income be imputed to the mother?

[115] The mother deposes that she is currently not working and in receipt of OW of $9,089 a year. She has provided proof that she applied for a work permit on July 16, 2020 and received a response that it was received and in process on November 4, 2020.

[116] No further evidence is provided as to what steps she has taken to expedite the process or what steps she has taken to improve her English or her skills or find employment.

[117] The father deposes that he also has no legal status in Canada but has been able to work and that there are opportunities to find work even without legal status.

[118] There are also minimum wage jobs where English, or any particular skills are not necessary or can be learnt on the job.

[119] Although the mother deposes that her only source of income is OW from May 1, 2020 to June 1, 2021 her CIBC chequing account indicates deposits, not including her OW, totaling $21,967.33. There is a deposit of $8,663.09 from Niun Can Corp. and on June 2, 2020 she deposited $7,624.24 and $5,680.

[120] The mother deposes that she is receiving funds from family and friends. However, it is not credible that family or friends would make deposits in such amounts. No affidavits or other proof was provided that these funds came from her family or friends.

[121] The mother has not produced any bank statements from her Bank of Montreal account that she states is closed. But the mother only closed that account recently and therefore there is credible reason provided as to why those statement should not be available to her or why she is not disclosing them.

[122] Although the mother’s financial statement dated May 17, 2021 indicates she is paying rent of $2,000 per month there are no rent cheques or e-transfers to her landlord. There are only 3 cash withdrawals of $2,000 but no other large cash withdrawals since November 2019. The mother’s most recent financial statement dated August 4, 2021 indicates she has a new residence and her rent is now $1,750. No proof of a lease or rental payments were provided.

[123] The mother’s financial circumstances remain unclear. As of January 2020, she has not had any child care responsibilities. She has an obligation to use her best efforts to provide some support for the children.

[124] I find that minimum income should be imputed to the mother. As noted, from May 2020 to June 2021 the mother deposited a total of $31,056.33 to the one bank account she has disclosed. I find that the mother is either working or has an undisclosed source of income.

[125] Based on an imputed income of $29,640, the mother should therefore be required to pay child support of $454 per month in accordance with the child support guidelines for two children.

Should income be imputed to the father?

[126] The father has worked in the construction industry since coming to Canada in 2012.

[127] As the father does not have any legal status, he is not able to obtain a social insurance number or be paid as an employee. He is working without a valid work permit.

[128] The father works as a subcontractor primarily for Jose Goncalves who operates JMG Corp. The father is paid by way of e-transfer or cash. The father also states that he works for some other clients and any cash payments are also deposited into his bank account.

[129] The father incurs expenses for construction materials, equipment, tools and payments to other subcontractors or laborers.

[130] Until 2020, he had not filed a tax return. He has calculated his income and expenses by calculating his deposits less his expenses.

[131] The father outlines his income and expenses as follows:

Year	Revenue	Cost of goods sold	Net income
2020	$198,991.16	$84,183.87	$114,807.29
2019	$121,496.97	$50,822.32	$70,674.65
2018	$90,137.58	$26,306.43	$63,831/15

[132] The “cost of goods” expenses do not include such items as his vehicle expenses, depreciation and office and accounting expenses.

[133] In order to explain any discrepancies noted by the mother’s counsel as to his income, the father deposes that the amounts of deposits are accurate and exclude all reversed transactions, refunds/returns, stop payments and/or error corrections.

[134] The father further and significantly excludes from his deposits $56,310. The father deposes these funds were received from Mr. Goncalves and that these funds were transferred to Brazil on behalf of Mr. Goncalves to various relatives.

[135] Mr. Goncalves filed an affidavit on these motions and confirmed that he asked the father to make several money transfers that he states totaled $56,810 on his behalf to Brazil. He deposes that because remittance companies have monthly limits on the amounts that can be sent he needed another bank account to send the monies he needed to send to Brazil.

[136] I have considered the relationship between the father and Mr. Goncalves may not be arms’ length. However, Mr. Goncalves has sworn an affidavit regarding these transactions and at this stage of the proceedings there is no basis to not accept his affidavit as truthful. Further, the father’s primary source of income is from Mr. Goncalves and his company and accordingly the father may have felt he had no choice but to accommodate this unusual banking arrangement.

[137] I find for the purposes of calculating the father’s income at this stage of the proceedings that the father’s income should be as outlined by him and excluding the funds that are alleged to belong to Mr. Goncalves. After a trial or as part of a final settlement, the income imputed to the father on these motions can be reconsidered.

[138] I therefore find that at this stage of the proceedings and for 2020, the father income should be as set out in his 2020 tax return namely, $114,807.29.

Section 7 expenses

[139] The father has incurred section 7 expenses on behalf of both children. He has paid $5,280 for Joaquin’s therapy with Dr. Lopo. As the father is a member of a union his benefits include a $1,000 for this expense. Accordingly, his net yearly cost of the therapy is $4,280. For this motion, the mother accepts this expense as being accurate.

[140] The father has also incurred childcare expenses. Initially he was paying his fiancé to provide that care. However, when the issue was raised that as this was not an arms’ length arrangement it may not accepted by the court, the father’s fiancé returned to work. The father took the position that he could not afford to pay his fiancé for childcare and her not work if those payments were not accepted by the court.

[141] The father is currently paying $700 per week or a yearly amount of $36,400, for childcare in his home for both children. He is attempting to find less expensive childcare.

[142] As he leaves for work at about 7:30 am and does not return until 5:00 pm he requires someone who can take Joaquin to school and pick him up in addition to providing full-time care for Munique.

[143] Counsel for the father has provided a printout from the City of Toronto regarding current homecare fees. Based on those rates, the cost of childcare for both children would be about $19,277. This amount would be lower if before and after childcare becomes available for Joaquin.

[144] The mother has proposed that reasonable childcare expenses should be in the range of $15,000.

[145] There are many contingencies that may occur so it is no possible to fix the rate of childcare with any precision at this time. However, if an amount is not allocated then the amount of spousal support payable cannot be accurately calculated as it will appear that the father has more disposable income than he has.

[146] I find that subject to further adjustments at year’s end, a cost of $19,277 should be allocated as reasonable childcare expenses. It should be noted that the actual cost to the father at the present time is $36,400.

[147] Based on the mother’s imputed income of $29,640 and the father’s imputed income of $114,808 the mother’s share of the section 7 expenses would be $499 per month or 25.9% of the total cost.

[148] Even if spousal support is paid to her, she would only be left with about 21% to 22% of the net disposal Income. I find that even with minimal wage imputed to the mother she does not have the financial means to pay any share of the children’s section 7 expenses at this time.

[149] The mother’s child support obligation at this stage will not be ordered to the date of the Application in consideration of the financial hardship this will cause the mother.

Spousal support

[150] A temporary spousal support order is meant to provide a reasonable solution to a difficult problem until trial. It is by its very nature inevitably imperfect.

[151] As set out in the case Politis and Politis [6] the onus is on the support claimant on a temporary motion to establish a prima facie case for entitlement.

[152] The court further reviews the principles applicable to a temporary motion for spousal support at para 14 as follows:

1. On applications for interim support the applicant's needs and the respondent's ability to pay assume greater significance;
2. An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it;
3. On interim support applications the court does not embark on an in-depth analysis of the parties' circumstances which is better left to trial. The court achieves rough justice at best;
4. The courts should not unduly emphasize any one of the statutory considerations above others;
5. On interim applications the need to achieve economic self-sufficiency is often of less significance;
6. Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;
7. Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out;
8. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.

[153] The basis for a consideration of entitlement is set out in the case of Bracklow v Bracklow [7] namely:

1. Compensatory
2. Contractual
3. Non-compensatory.

[154] As the court stated these 3 bases of support flow from the controlling statutory provisions and the relevant case law, and are more broadly animated by differing philosophies and theories of marriage and marital breakdown.

[155] On this motion it is conceded that the mother has a claim for spousal support on a non-compensatory basis based on her need and on a lesser basis on a compensatory basis.

[156] It is submitted that the mother has not given up any career opportunities as a result of her relationship with the father and that throughout the relationship the father wanted the mother to work but she was not interested.

[157] However, the mother was the primary caregiver of the children from the birth of Joaquin in 2014 and birth of Munique in 2019 until the parties separated. Although she did not make any direct contribution to the father’s ability to earn an income because of her staying home with the children, he was able to work outside of the home.

[158] On a non-compensatory basis, the mother has established that she has a need for spousal support. Even when minimum wage income is attributed to the mother, she still has a need for spousal support.

[159] As this is a temporary motion only, the issue of the mother’s efforts to become self-sufficient have less significance then they will have when considering the duration of spousal support and the quantum on a final basis.

[160] Based on the Divorcemate calculations that impute income to the mother at $29,640 and the father’s income at $114,808, the monthly spousal support payable ranges from a low of $653, medium of $762 and high of $870.

[161] I find that in this case the low range of spousal support should be awarded to the mother. I come to this conclusion based on the fact that the father is incurring high section 7 expenses that the mother will not be contributing to at this time. The expense for Joaquin’s therapy is also being incurred as a result of the abuse inflicted upon him by the mother.

[162] The father will be bearing almost the entire cost of meeting the needs of these two children. His actual section 7 expenses until he can arrange for more affordable childcare are higher than the $19,277 provided for in the Divorcemate calculations.

[163] I have declined to order spousal support payable since the commencement of these proceedings as such an award would cause financial hardship to the father.

[164] I also do not need to consider if the mother is entitled to the post-separation increase of the father’s income as the parties were separated in 2019. As they lived separate and apart in the same residence for 2019, I have no evidence that the father did not continue to meet the financial needs of the mother. If this proves not to be accurate then the parties can resolve the issue of any spousal support owing in 2019 at trial or in a final settlement.

Conclusion

[165] I appreciate that this decision will be difficult for the mother. I commend her for the work she has already done in attempting to deal with her personal trauma and her efforts to become a better parent to both children.

[166] The father also needs to understand that despite the mother’s past conduct towards Joaquin with proper assistance the mother can learn to better parent both these children.

[167] The court must be guided by what is best for the children at this time and ensure that they are safe in the mother’s care and that she can meet all their needs when exercising her parenting time.

[168] At this time, I find that there are still more steps the mother needs to take before her parenting time can be expanded so that the court and the father can feel assured that Munique will be safe and well cared while in her mother’s care.

[169] Further, with respect to Joaquin his voice in these proceedings should be heard and respected. He has been clear and consistent that he is not ready to resume contact with his mother. The court needs to be guided by his comfortable level and readiness to begin any reunification with his mother even if it is slower than the mother may wish.

[170] There will therefore be a temporary order as follows:

1. The Respondent shall have sole decision-making responsibilities regarding the children Joaquin Antonio Batista Oliveira born […], 2014 and Munique Josephine Batista Oliveira born […], 2019.
2. The Respondent shall consult with the Applicant with respect to any major decision he wishes to make with respect to both children. The Applicant shall advise the Respondent in writing within 7 days of her views and opinions about any such decision. If the Applicant does not respond to the Respondent’s consultation in writing within 7 days or if he does not agree with her, the Respondent shall be able to make the decision in dispute.
3. The Respondent shall advise the Applicant of the children’s doctor, school or any service provider involved with the children and the Applicant shall be able to obtain information directly from these sources.
4. The children shall reside in the primary care of the Respondent.
5. The Applicant shall continue to have parenting time with the child Munique every Sunday from 10:00 am to 5:00 p.m.
6. The Applicant shall be responsible for both picking up and returning the child to the Respondent’s residence.
7. The Applicant shall have no contact with the child Joaquin at this time.
8. The parties may agree in writing to any further parenting time virtual or in person to either child. With respect to any changes regarding the Applicant having parenting time with Joaquin this shall be done after consulting with his therapist Dr. Valda Lopo.
9. Based on an imputed income of $29,640 and in accordance with the Child Support Guidelines for two children the Applicant shall pay the Respondent child support of $454.00 per month as of September 1, 2021.
10. The Respondent shall pay the Applicant spousal support of $653.00 per month as of September 1, 2021.
11. The orders for both child support and spousal support are without prejudice to either party’s claim for retroactivity or a different quantum.
12. Support Deduction Order to issue.

[171] If the Respondent as the successful party is seeking costs, brief cost submissions not to exceed 3 pages with any offer to settle and a bill of costs attached is to be served and filed within 30 days. The Applicant shall serve and file responding costs submissions within 30 days of receipt of the Respondent’s submissions on the same terms. Copies of any case law should not be submitted it is only necessary to provide the case name, citation and paragraphs being relied upon.

[172] I wish to thank both counsel for their excellent representation of their clients on these complex motions.

Signed: Justice Roselyn Zisman

[1] At the end of the submissions counsel were requested to submit further Divorcemate calculations based on their final positions on the motions.

[2] 2021 ONCA 555 at paras. 40-42

[3] Dr. Lopo in various reports spells the child’s name as “Joaquim” but the parents spell it “Joaquin.” I have not changed her spelling.

[4] , 61 O.R. (3d) 711, [2002] O.J. No. 3731, (Ont. C.A.)

[5] [ 2001] O.J. No. 1053 (SCJ)

[6] 2015 ONSC 5997 at para. 15

[7] [1999 ] 1SCR 4 at para. 15