COURT FILE NO. D42290/22 DATE: October 24, 2022

ONTARIO COURT OF JUSTICE

B E T W E E N:

N.M.

APPLICANT

LAUREN ISRAEL, for the APPLICANT

• and -

S.M.

RESPONDENT

ACTING IN PERSON

HEARD: OCTOBER 18-19, 2022

JUSTICE S.B. SHERR

REASONS FOR DECISION

Part One – Introduction

[1] This trial was about the parenting and child support arrangements for the parties’ two boys, A., who is 6 years old and B., who is 2 years old (the children).

[2] The applicant (the mother) seeks parenting orders that the children have their primary residence with her, that she have sole decision-making responsibility for them and that the respondent (the father) have a regular parenting time schedule with the children to take place on alternate weekends from Friday evening until a return to school or daycare on Monday morning.

[3] The mother also seeks incidents of parenting. She seeks orders dispensing with the father’s consent for her to obtain and renew government documentation for the children and to travel with the children outside of Canada. She also asks for specific parenting orders related to the father’s parenting time with the children.

[4] The mother seeks child support from the father, retroactive to February 1, 2020, and asks the court to impute his annual income at $70,000 for the purpose of this calculation.

[5] The father seeks parenting orders for joint decision-making responsibility and equal parenting time with the children. He opposes the parenting orders sought by the mother.

[6] The father advised the court that he is prepared to pay child support of $550 each month, starting on November 1, 2022, even though he is not earning the level of income that would generate this monthly table amount pursuant to the Child Support Guidelines (the guidelines).

[7] This trial was organized as a focused hearing by the case management judge, Justice Roselyn Zisman. The direct evidence of the parties and one additional witness were to be provided by affidavit. Timelines were set for the filing of the trial affidavits and documentation, including specified financial disclosure.

[8] The father served and filed a trial affidavit but did not follow the balance of Justice Zisman’s trial directions. He did not file the documentation she ordered. He brought several people to court on the first day of trial to testify. None had been disclosed in advance as witnesses. The father was permitted to call one additional witness, despite his non-compliance with the trial planning order. His father (the paternal grandfather) testified orally and was cross-examined. The mother filed a trial affidavit from her mother (the maternal grandmother). She was cross-examined by the father. The parties were permitted to give additional oral evidence and cross-examined each other.

[9] The issues for trial are:

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

b) When should the order for child support start?

c) What is the father’s income for support purposes in the years that child support will be ordered? Should income be imputed to him?

Part Two – Background Facts

[10] The mother is 28 years old. She is single and resides in Toronto with the children. The mother is employed full time as a purchaser for a retail company and works 9 a.m. to 5 p.m. from Monday to Friday.

[11] The father is 35 years old. He is single and lives in Toronto. He is a professional mixed martial arts fighter. He also owns and operates a gym teaching mixed martial arts.

[12] The father has two children from another relationship, who are 10 and 9 years old. The father deposed that there is a 2013 order from the Newmarket Family Court that he have joint decision-making responsibility for these children. He said that he has parenting time with these children on alternate weekends and every day after school for a few hours, plus holiday time. He said that he is required to pay $600 each month for child support. [1]

[13] The parties cohabited from May 2016 until February 1, 2020.

[14] The children lived primarily with the mother after the parties separated, but frequently spent parenting time with the father. From September 2020 until September 2021 the father picked up the children from after school or daycare every weekday, spent a few hours with them and returned them to the mother. The children also spent two overnights with him each week.

[15] In September 2021, the parties orally agreed that the father would have the children for one overnight each week. The parties agree that the father kept the children for additional overnights. The mother testified that she did not agree with the father doing this – that he did this unilaterally. The father disputes this.

[16] On February 1, 2022, the mother issued this application. An automatic financial disclosure order was made.

[17] A case conference was held before Justice Zisman on June 2, 2022. The father had not filed his Answer or any financial disclosure. Justice Zisman ordered him to file his Answer, Form 35.1 affidavit and financial statement, the disclosure required in the automatic disclosure order, his 2021 income tax return and attachments, and his 2021 corporate tax return.

[18] Justice Zisman also ordered the father, on a temporary without prejudice basis, to pay child support of $350 each month to the mother, starting on June 1, 2022. She further made a temporary without prejudice order that the father have parenting time with the children on alternate weekends from Friday after school until Sunday at 7 p.m. She reserved costs of the appearance.

[19] The temporary parenting order of Justice Zisman was not followed. The father continued to take the children overnight on Mondays and Wednesdays and saw the children for a few hours every day during the summer.

[20] Justice Zisman held a settlement conference on July 26, 2022. The father had provided none of the financial disclosure that he had been ordered to produce.

[21] In September 2022, the mother asked the father to comply with the temporary parenting order. The father is now seeing the children on alternate weekends. He is also seeing the children every Monday to Wednesday after school or daycare for a few hours in addition to the parenting time ordered.

[22] The father has paid the mother little child support since Justice Zisman made the temporary support order and is already in considerable arrears.

Part Three – Statutory Considerations - Parenting

[23] Any proceeding with respect to children is determined with respect to the best interests of the particular child before the court in accordance with the considerations set out in section 24 of the Children’s Law Reform Act (the Act). The court has considered these factors, where relevant.

[24] Subsection 24 (2) of the Act provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests.

[25] Subsection 24 (3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child. It reads as follows:

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.

[26] Subsection 24 (4) of the Act sets out factors relating to family violence. It reads as follows:

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.

[27] Subsections 18 (1) and (2) of the Act defines family violence as follows:

(1)“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; (“violence familiale”)

“Family violence”

(2) For the purposes of the definition of “family violence” in subsection (1), the conduct need not constitute a criminal offence, and includes,

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property.

[28] Section 28 of the Act sets out the different types of parenting orders that a court can make.

[29] Subsection 33.1 (2) of the Act addresses the importance of the parties protecting children from conflict. It reads 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.

Part Four – Evidence for the Mother Regarding Parenting Issues

[30] The mother testified that she has always been the children’s primary caregiver. She said that the children spend most of their time with her. She stated that she is the parent who does homework with A. and communicates with his school and with B.’s daycare. She said that she is the parent who organizes the children’s schedules, arranges extra-curricular activities and who takes care of their day-to day instrumental needs.

[31] The mother said that she has a close relationship with the children. They do many activities together.

[32] The mother deposed that she is the parent who usually makes the major decisions for the children. She said that she works hard to communicate with the father and keep him informed about the children’s welfare.

[33] The mother said that the children are, for the most part, doing very well in her primary care and asks for this arrangement to continue.

[34] The mother had many positive things to say about the father. She said that the children have a very close bond with him. The children are often sad and upset when they leave him.

[35] The mother acknowledged that she discusses the children’s medical needs with the father and that they share ideas about the children’s nutrition and diet. She said that the father often takes the children to medical appointments.

[36] The mother testified that the father takes the children to church and puts them into activities at the church. The mother said that she sometimes attends the same church.

[37] The mother stated that the children have a very close relationship with their half-siblings, members of the paternal family and many instructors at the father’s gym.

[38] The mother said that the children enjoy their time with the father at his gym. She said that “they know this is where the father is most happy and most proud of them”. She also said that A. likes taking Muay Thai classes at the gym. He is energetic, a good athlete, and she feels that this is a good program for him.

[39] However, the mother has serious concerns about her ability to co-parent with the father. She also has concerns about his parenting judgment.

[40] The mother gave detailed evidence that she was the victim of family violence from the father. There was some physical violence. Most of the violence was emotional, psychological and financial. The mother described the father as controlling and coercive. She led evidence that he is demanding and persistent until he gets what he wants.

[41] The mother deposed that if she voices an opinion contrary to the father’s he will quickly get angry. She said that he is unwilling to compromise. He often told her that he is older and knows better. If she did not agree with him he often threatened her with violence. She said that she has often felt powerless with him and gives in. She said that he then says that they made the decision jointly.

[42] The mother said that she was not permitted to complain to the father, even when he was unfaithful to her during her pregnancies.

[43] The mother described the father as aggressive and intimidating. She said that he frequently yelled at her in front of the children. She said that he often got right into her face and screamed at her. On one occasion, he was so close to her, while screaming in her face, that his tooth cut the bridge of her nose. She said that he then kicked her in the ankle.

[44] The mother said that the father once kicked the door off its hinges in anger and the door hit her. She said that he also kicked a rotating fan that left damage on the walls of the living room.

[45] The mother said that the father often apologized afterwards for his behaviour.

[46] The mother testified that the father constantly degraded her. He called her names and criticized her in front of the children for everything she did.

[47] The mother said that she is fearful of the father and often apologized for her behaviour and complimented him to placate him. She said that she walked on eggshells around him.

[48] The mother described how she has had difficulty extricating herself from her relationship with the father. She said that she tried to separate from him several times without success. She said that she would ask him to leave and he would refuse.

[49] The mother deposed that on one return to her home the father told her that he would no longer financially contribute as punishment for her having asked him to leave. He told her the new rules included his coming and going as he pleased.

[50] The mother said that she has tried to set boundaries since their separation, but the father ignores them and does what he pleases. She said this is why the father was still spending two nights a week at her home and seeing the children daily up until September 2021. Even after Justice Zisman made her temporary parenting order in June 2022, the father did not follow it and she could not set boundaries for him.

[51] The mother said that the father still refuses to give her the children’s health cards.

[52] The mother said that the father often uses the children to manipulate her into capitulating to what he wants. He tells the children that she is trying to take them away from him or preventing them from going to the gym with him.

[53] Earlier this year, the mother planned to take the children to Great Wolf Lodge for the weekend. She had notified the father two weeks before. When the weekend arrived, the father was furious because it would interfere with his celebrating A.’s birthday. In front of the children, he accused the mother of trying to take the children away from him. He told A. to tell her that “You are not OK with this plan”. The mother said that A. was shaken, in tears and asked to stay with the father. [2]

[54] The mother testified that she is getting stronger and was able to set some boundaries for the father in September 2022, when she asked him to comply with the temporary parenting time order. However, she was only partially successful. She said that she was still too afraid to ask the father to give up taking the children after school and daycare from Monday to Wednesday each week.

[55] The mother also has many concerns about the father’s parenting judgment. She is concerned that the father returned the children late to school and daycare when he had overnight parenting time. She said that he often returns the children to her late in the evenings and sometimes, the children are tired and hungry. She said this makes it very difficult to maintain the children on a schedule.

[56] The mother is concerned that the children are not being properly supervised by the father at his gym, since he is working. She described how the children have suffered some injuries there when unsupervised. She said that when the father focuses on the children during his parenting time away from the gym his visits are much more positive.

[57] The mother expressed concern that the children are becoming much more aggressive, both at home and at school and daycare. They have picked up inappropriate language from the adults and the music played at the gym. She said that the father minimizes these concerns. She said that she would like to arrange counseling for A., but the father disagrees.

[58] The mother feels that the father puts his own needs ahead of the children. She said that he has recently punished her for changing the parenting schedule by giving her only $40 to $60 each month for support despite the court order requiring him to pay her $350 each month.

[59] The mother stated that the father becomes very upset if he feels his parenting time is reduced but does not hesitate to reduce her parenting time based on the children wanting to stay longer with him. She said that he has breached their oral agreements and just kept the children for additional overnights.

[60] The maternal grandmother also testified. She stated that she has a very close relationship with the mother and the children. She is the mother’s main parenting support. She said that the mother is an excellent parent and that the children thrive in the mother’s care.

[61] The maternal grandmother made positive observations about the father’s relationship with the children. She expressed concerns about the children’s aggression and inappropriate language. She said the father just laughs at her when she mentions this.

[62] The maternal grandmother deposed that it is awful to watch how the father treats the mother. She said that he breaks the mother down. The mother flinches when he raises his voice to her. She said that it is frightening to see him explode in anger and to see the mother cowering and full of shame. She said that this occurs in front of the children. She said that the mother has been so intimidated by the father that she has permitted him to stay at her home, even after their separation.

[63] The maternal grandmother spoke about having to fix the wall at the mother’s home and repaint it after the door was taken off the hinges.

[64] The maternal grandmother said that she assists the mother financially. She said that the father boasts that he pays for the children when they are with him and does not believe that he has to give the mother any support.

[65] The maternal grandmother observed that the father seems oblivious to the impact his conduct has on the mother.

[66] The mother asks that the children have their primary residence with her. She does not feel that she can effectively make joint major decisions with the father about the children and seeks sole decision-making responsibility for them. She is willing to first consult with the father about these decisions.

[67] The mother seeks a structured parenting schedule. She does not want the children to spend mid-week overnights with the father and she does not want him to take the children to the gym during his parenting time.

Part Five – Evidence for the Father Regarding Parenting Issues

[68] The father seeks a joint decision-making responsibility order and equal parenting time with the children.

[69] The father believes, despite some differences, that he and the mother have made major decisions about the children together for their entire lives and have done an amazing job. He submitted that it was best for the children to have both parents completely involved in their lives.

[70] The father said that his children mean everything to him and that he would do anything for them. The father described his very close bond with the children.

[71] The father said that he has always been involved in every aspect of the children’s lives. He said that he takes them to medical appointments. For most of their lives, he said, he has picked them up daily from daycare or school.

[72] The father described how his faith is very important to him. He wants to instill religious and moral values in the children. He takes them to his church on the Sundays that they are with him, and he has enrolled them in church activities.

[73] The father said that the children have been thriving with both parents being actively involved in their lives. A. has excelled academically. A. is also a very good athlete and has many friends. He denied that the children have any behavioural issues and if they do, it is only at the mother’s home. He does not agree that A. requires counseling.

[74] The father said that he is involved in A.’s extra-curricular activities. He goes to all of his baseball and basketball practices and games and cheers him on.

[75] The father testified that he is an excellent parent, person and role model for the children.

[76] The father deposed that the children have a very close relationship with his other two children. They see each other frequently as he picks up his other children every day after school for a few hours.

[77] The father said that the children also have close relationships with his extended family members and the instructors and children at his gym.

[78] The father feels that his gym has been a very positive environment for the children. He described it as a family friendly atmosphere. He said that the children love to be there. He stated that he properly supervises the children at the gym. He has set up a separate playroom for them. He said that A. enjoys the martial arts classes and it is an excellent activity for him.

[79] The father pointed out that the mother has trained at the gym and that she used to often attend at the gym with the children, even after their separation.

[80] The father adamantly denied all allegations of family violence.

[81] The father observed that he has no criminal record and there have been no police reports. He provided texts where the mother called him an amazing dad that post-dated alleged incidents of abuse. She also let him stay overnight at her home after they separated. She came to events and family functions at his gym after their separation. He said that she called him if she needed help, such as to fix her car. He said that this is all indicative that the mother has never been afraid of him.

[82] The father testified that he has never imposed his parenting time on the mother – it has always been agreed to. He said that he respected her boundaries when she asked him not to come to her home.

[83] The father testified that the mother unilaterally tried to restrict his parenting time with the children after she started a relationship with a boyfriend in June 2021. He said that she also tried to restrict his time with the children once this case started.

[84] The father fears that the mother is trying to remove him from the children’s lives and that this will emotionally harm the children.

[85] The father stated that the mother and the maternal grandmother are both liars and cannot be trusted.

[86] The father admitted that he often dropped the children off late to school or daycare. He blamed the mother for this. He said that A. was often exhausted when he came to him. He also observed that most of the children’s absences or late attendances were when the mother had the children. [3]

[87] The father denied that he frequently returns the children late to the mother. He produced a few texts indicating that the mother has sometimes asked him to keep the children longer because she is working late or doing something else. He said, on occasion, the notice she gave him was very late or while he was on the way to her home.

[88] The father expressed concern that the mother does not prioritize the children’s needs and that she is more interested in her social life. He said that she is regularly not available on exchanges.

[89] The father said that he has done his very best to financially support the children but his business is struggling. He testified that he pays for many items for the children during his parenting time. He stated that the mother has not been disadvantaged by his failure to pay support.

[90] The paternal grandfather testified. He stated that the father is “the best father in the world” who puts the children ahead of everything in his life. He said that the father teaches all his children “positive values, discipline and God”. He said that the father is everything a child would want in a father. He described the father as protective and said that he is involved in all of their activities.

[91] The paternal grandfather said that the gym is a very positive environment for the children. He stated that the father has set up a separate room for the children to play in.

[92] The paternal grandfather described having a close and loving relationship with the children.

[93] The paternal grandfather denied that the father has ever mistreated the mother. He said that the mother gets hysterical and behaves stubbornly. He said that she was never afraid of the father. He described one incident where the mother refused to leave the father’s home. He was asked to speak to the mother and he had to trick her into leaving.

[94] The paternal grandfather testified that he has warned the father to be careful about the mother because “we don’t know what she is up to”. He fears that she will call the police and make false allegations against the father.

[95] The paternal grandfather denied that the mother has ever called him asking him to speak to the father about his abuse.

[96] The paternal grandfather expressed his belief that the mother was trying to take the children away from the father.

Part Six – Reliability and Credibility

[97] The mother was a very credible witness. Her evidence was balanced. She spoke about many of the father’s parenting strengths. It was evident to the court that she has supported and will continue to support the children’s relationship with the father. The mother’s evidence was presently calmly, without exaggeration and was generally consistent.

[98] The maternal grandmother was also a credible witness. She too gave balanced evidence. The court recognizes that she is an aligned witness, so her evidence did not have as much impact on the court’s findings.

[99] The court had concerns about the reliability and the credibility of the father’s evidence.

[100] The father portrayed himself at trial as the perfect father. He interpreted all events through this prism and was dismissive of any evidence that would portray him differently. This made his evidence less reliable.

[101] The father presented skewed interpretations of events. He felt that it was acceptable to spend $6,800 each month for rent for his gym and $1,290 each month for his car, but to only give the mother $40 to $60 each month for support. He has convinced himself that the expenses he spends on himself are for his children’s benefit and that the mother does not really need child support.

[102] The father believes that the parties jointly make decisions. However, the evidence showed that they were only able to jointly make decisions if they agreed on the issue. When they disagreed, the father would assert himself or manipulate the situation until the mother gave in.

[103] The father’s evidence was also less reliable than the mother’s because his evidence was not nearly as balanced. He had very little positive to say about the mother and he only made positive comments about her begrudgingly. He took no responsibility for any of the difficulties in their relationship and tried to portray it as much better than it is.

[104] The father was not credible at all about his financial affairs. He did not provide meaningful or timely financial disclosure about his business. He was often evasive and defensive when questioned about his finances. As will be set out below, the father is earning or is capable of earning much more income than he claims.

[105] When someone is deceptive about their financial affairs, it is going to make the court question their evidence on other issues.

[106] The court considered the evidence of the paternal grandfather with caution. He is an aligned witness and was dismissive of anything potentially negative about the father – at one point he laughed at the mother’s counsel when she asked him if the mother had ever called him asking him to speak to the father about his behaviour. He had nothing positive to say about the mother.

[107] Where their evidence conflicted, the court preferred the evidence of the mother and the maternal grandmother to that of the father and the paternal grandfather.

Part Seven – Family Violence

Jurisprudence

[108] The Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22 recently made the following observations about family violence:

1. The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis (par. 146).
2. The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497. (par. 145).
3. Domestic violence allegations are notoriously difficult to prove. Family violence often takes place behind closed doors and may lack corroborating evidence. Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support (par. 145).

[109] Justice Deborah Chappel wrote about the importance of family violence as a best interests factor in paragraph 86 of McBennett v. Danis, 2021 ONSC 3610, as follows:

The broad definition of family violence and the specific inclusion of this factor as a mandatory consideration in determining the best interests of children recognize the profound effects that all forms of family violence can have on children. These consequences can be both direct, if a child is exposed to the family violence, or indirect, if the victimized parent’s physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact their ability to meet the child’s physical and emotional needs.

[110] In cases of family violence, particularly spousal violence, it is crucial that the court consider whether a co-operative parenting arrangement is appropriate. A victim of family violence might be unable to co-parent due to the trauma they have experienced or ongoing fear of the perpetrator. In addition, co-operative arrangements may lead to opportunities for further family violence. See: Bell v. Reinhardt, 2021 ONSC 3353.

[111] Family violence can be insidious. It can take many forms, and frequently involves coercive and controlling behaviors which are usually very difficult to prove because they often take place in private. Abusers, especially those of the coercive and controlling kind, are often skilled manipulators; they can be charming, they can be convincing liars, and they can be very persuasive. Victims of family violence are often the only witnesses who can attest to their abuser’s behavior and unfortunately, they are sometimes not believed because of their inability to support their allegations with objective third party evidence. See: Volgemut v. Decristoforo, 2021 ONSC 7382.

[112] Denigrating your spouse in front of the children fits within the definition of family violence. See: Ammar v. Smith, 2021 ONSC 3204.

[113] Failure to speak out earlier and inconsistent evidence is common for victims of domestic violence. See: A.W. v. A.B., 2021 ONSC 7302.

[114] The court is also very aware that family violence is sometimes difficult for the victim to prove. It is often not reported. There may be many reasons for this. There will often be no medical, police or Children’s Aid Society reports to corroborate allegations of family violence. Victims sometimes minimize and rationalize the abuse. The family violence can take place in private so that there are no witnesses. Control and coercion can be subtle and only evident to the victim. See: Wiafe v. Aboakwa-Yeboah, 2021 ONCJ 201.

[115] The father submitted that his spending nights at the mother’s home and her facilitation of extra parenting time proved that she was not afraid of him. This court wrote the following at paragraph 57 of I.A. v. M.Z., 2016 ONCJ 615:

The father submitted that the mother’s facilitation of access and her reconciliation with him shows that she did not fear him. The court disagrees and does not draw this inference. The mother’s ambivalence to separating from the father is a common reaction this court sees in victims of domestic violence. It is often difficult for victims of domestic violence to extricate themselves from abusive relationships. It is complicated when a child is involved, the victim’s self-esteem has been damaged and the victim feels a sense of responsibility (often disproportionate) for the breakdown of the family.

Analysis

[116] The court accepts the evidence of the mother and the maternal grandmother regarding family violence. The court finds that the father has perpetrated family violence against the mother. Some of this violence has been physical. Most of it has been psychological, emotional and financial. It has taken place in the presence of the children.

[117] The court finds that there is a strong power imbalance between the parties. The father has acted in a controlling and coercive manner towards the mother.

[118] The dynamic between the parties described by the mother and the maternal grandmother played out at trial. The mother was quiet and deferential, often with her head down and appearing nervous. The father was assertive, confident and uncompromising in his view of events.

[119] The dynamic between the parties is that the father keeps pushing his agenda on the mother until she capitulates. He then says that they jointly agreed.

[120] The mother often capitulates because the father manipulates the children. He puts the mother in impossible situations. The Great Wolf Lodge incident is one example.

[121] The court accepts the mother’s evidence that the father unilaterally overheld the children for overnight visits. This was controlling behaviour.

[122] The father testified that he kept the children for additional nights because the children wanted to stay with him. He would have A. make that request to the mother instead of discussing the issue directly with her. The father said that the children should decide this. When it was pointed out that the children were too young to decide this and that this put the mother in a difficult situation and deprived her of her parenting time, the father disagreed and said he was entitled to this extra time because the mother had reduced it over his opposition.

[123] The father does nothing to ease the children’s transitions to the mother. Instead, he has used the children’s distress as a pretext to keep them longer.

[124] The father has refused to give the children’s health cards to the mother – yet another example of his controlling behaviour.

[125] The father has financially abused the mother. He has the ability to pay her generous support and intentionally pays her very little support to control her and to make her life difficult. This has meant that the mother has had to work longer hours to support herself and the children.

[126] The father also conducted this litigation in a controlling and manipulative manner. This supported the mother’s description of their relationship. In particular:

a) He disregarded many court orders to provide her with financial disclosure.

b) He provided the mother with late and partial financial disclosure just prior to trial.

c) He failed to follow the trial directions of Justice Zisman.

d) He failed to follow the temporary parenting time order of Justice Zisman.

e) He failed to advise the mother of his witnesses in advance of the trial. Instead, he brought them to court on the first day of trial, apparently attempting to surprise and rattle the mother.

f) He brought the mother’s estranged father (the maternal grandfather) to the trial. It appears that he did this to intimidate the mother and the maternal grandmother. The father is aware that the maternal grandmother and the mother feel that the maternal grandfather was abusive to them. When asked why he brought the maternal grandfather to court, the father said that he did this so that the mother and maternal grandmother would have to face him. He said that he wanted them to be accountable for their lies. He said that he knew bringing the maternal grandfather to court would be a horrible experience for the mother. The maternal grandmother testified that the maternal grandfather verbally abused her in the court hallway during the trial.

g) He attempted to focus his cross-examination of the maternal grandmother on her past history of being abused and her alleged alcohol use. When questioned by the mother’s counsel about why he did this, the father claimed that he was not making these allegations about the maternal grandmother. Rather, he just wanted to ask her about it. This was disingenuous. The father conceded that he did this because he felt the maternal grandmother had lied about him. This was spiteful and unkind.

h) He did not cross-examine the maternal grandmother on the parenting concerns she had expressed about him in her affidavit. When asked why, he said that he did not want to get into any of that.

i) He presented his direct evidence in a calm, coherent manner. However, once he was cross-examined, he tried to control the examination. He frequently interrupted counsel and evaded and deflected questions.

Part Eight – Findings on Contested Parenting Facts

[127] The court makes the following findings about the other contested material facts regarding the parenting issues:

a) The mother has been the primary caregiver of the children.

b) The mother has been the parent primarily responsible for attending to the medical, educational and emotional needs of the children.

c) The court finds that the father inappropriately involves the children in discussions about parenting time and decisions that the adults should be making.

d) The father often returned the children late to school or daycare.

e) The school records show that the mother also brought the children late to school or daycare – both parents need to do better.

f) The father is sometimes lax in his supervision of the children at his gym.

g) The children are developing aggressive behaviours that the parents need to address. The father has no insight into these issues and has been dismissive when these concerns have been raised.

h) The mother facilitates the father’s relationship with the children. The father does not consistently facilitate the mother’s relationship with the children.

i) The mother tries to protect the children from conflict. The father creates conflict.

Part Nine – Primary Residence and Decision-Making Responsibility

Legal Considerations

[128] The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275 sets out the following principles in determining whether a joint decision-making responsibility order (formerly custody 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.

[129] 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; T.P. v. A.E., 2021 ONSC 6022; Shokoufimogiman v. Bozorgi, 2022 ONSC 5057; Jacobs and Coulombe v. Blair and Amyotte, 2022 ONSC 3159.

[130] 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, 2005 CarswellOnt 3209 (OCJ). 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.

[131] 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. See: Jama v. Mohamed, [2015] ONCJ 619; T.P. v. A.E., 2021 ONSC 6022; McBennett v Danis, 2021 ONSC 3610; J.T. v. E.J., 2022 ONSC 4956; Shokoufimogiman v. Bozorgi, 2022 ONSC 5057.

[132] 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.

[133] In S.S., this court further stated that the court should also examine 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.

[134] The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.

[135] In considering a child’s best interests it will often be important to determine if a parent will follow the terms of a court order. See: Wiafe v. Aboakwa-Yeboah, 2021 ONCJ 201.

[136] 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 children’s best interests. The court also has the option, if it is in the children’s best interests, to leave some or all aspects of decision-making responsibility silent. See: M. v. F., 2015 ONCA 277.

Analysis

[137] The evidence is overwhelming that it is in the children’s best interests for them to have their primary residence with the mother and for her to have decision-making responsibility for them for the following reasons:

a) The communication between the parties is too poor for joint decision-making responsibility.

b) The father has perpetrated family violence against the mother.

c) The father remains controlling and coercive towards the mother.

d) The father uses the children as pawns to manipulate decisions.

e) A joint decision-making responsibility order would likely be used by the father as a mechanism to control the mother.

f) The parties have no trust in one another.

g) The father does not respect the mother. His response to her raising concerns about the children’s behaviour was to call her a liar.

h) The father won’t follow court orders. It is unrealistic to expect him to co-parent constructively with the mother.

i) The mother has much better parenting judgment than the father.

j) The court has more confidence in the mother than the father to make child-focused decisions.

k) The mother has been the primary caregiver for the children. She provides the children with stability and continuity.

l) The mother has been the parent who has primarily looked after the children’s health, education and emotional welfare.

m) The mother is better at shielding the children from conflict than the father.

n) The father has shown poor parenting judgment by failing to adequately financially support the children.

o) The father dismisses any criticism of himself or concerns about the children. This creates a risk of their needs being unaddressed by him.

[138] The mother will now be free to arrange counseling for A., if she so chooses.

[139] It is in the children’s best interests that the father be involved in their lives. The mother shall first consult the father about major decisions affecting the children. Further, the father shall be entitled to information about the children directly from their teachers, doctors or other service providers. The mother shall provide him with the children’s schedule for extra-curricular activities and the father will be entitled to attend at them.

[140] The father is very involved in the children’s cultural, religious and spiritual training. The order will provide that both parties may make decisions about the children’s cultural, religious and spiritual training, as they see fit, when the children are in their care.

Incidents of Parenting

[141] The court will dispense with the father’s consent for the mother to obtain or renew government documentation for the children and for them to travel with her for vacation purposes outside of Canada.

[142] There is a real possibility that the father would use a consent requirement to control the mother and deprive the children of documentation they need, or to thwart travel that would be in their best interests. He has been vindictive when he does not get his own way.

[143] The order will permit the father to take the children on vacation outside of Canada, but only with the prior written and notarized consent of the mother, or a prior court order. The court trusts the mother to exercise this discretion reasonably.

[144] The father has inappropriately withheld the children’s health cards from the mother. He will be required to deliver them to her within 7 days.

Part Ten – Parenting Time

Legal Considerations

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

[146] Subsection 24 (6) of the Act states that 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.

[147] A starting point to assess a child’s best interests when making a parenting order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making a parenting time order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615; 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.

[148] In Knapp v. Knapp, 2021 ONCA 305, the court set out that there is no presumption that maximum parenting time equates with equal-parenting time. Every family, it wrote, is different and the court must focus on the child’s best interests in determining the appropriate parenting order.

[149] In O'Brien v. Chuluunbaatar, 2021 ONCA 555, the court noted at paragraph 49 that the maximum contact principle has been replaced by subsection 24 (6) of the Act.

[150] In Barendregt v. Grebliunis, supra, the Supreme Court of Canada wrote the following about the maximum time principle at paragraphs 134 and 135:

[134] Although Gordon placed emphasis on the “maximum contact principle”, it was clear that the best interests of the child are the sole consideration in relocation cases, and “if other factors show that it would not be in the child’s best interests, the court can and should restrict contact”: Gordon v. Goertz, [1996] 2 SCR 27, at para. 24; see also para. 49. But in the years since Gordon, some courts have interpreted what is known as the “maximum contact principle” as effectively creating a presumption in favour of shared parenting arrangements, equal parenting time, or regular access: Folahan v. Folahan, 2013 ONSC 2966, at para. 14; Slade v. Slade, 2002 YKSC 40, at para. 10; see also F. Kelly, “Enforcing a Parent/Child Relationship At All Cost? Supervised Access Orders in the Canadian Courts” (2011), 49 Osgoode Hall L.J. 277, at pp. 278 and 296-98. Indeed, the term “maximum contact principle” seems to imply that as much contact with both parents as possible will necessarily be in the best interests of the child.

[135] These interpretations overreach. It is worth repeating that what is known as the maximum contact principle is only significant to the extent that it is in the child’s best interests; it must not be used to detract from this inquiry. It is notable that the amended Divorce Act recasts the “maximum contact principle” as “[p]arenting time consistent with best interests of child”: s. 16(6). This shift in language is more neutral and affirms the child-centric nature of the inquiry. Indeed, going forward, the “maximum contact principle” is better referred to as the “parenting time factor”.

[151] 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: L.B. v. P.E., 2021 ONCJ 114; L.I.O. v. I.K.A., 2019 ONCJ 962.

Positions of the Parties

[152] The mother seeks an order that the father have parenting time with the children on alternate weekends from Friday after school until drop off to school and daycare on Monday. She seeks a term that the father not take the children to his gym during his parenting time. The mother also seeks a right of first refusal to care for the children if the father is unable to care for them.

[153] The father seeks equal parenting time with the children. He proposed a schedule where the children frequently transition between him and the mother during the week.

Analysis

[154] The court has expressed its concerns about the father’s conduct and parenting judgment in this decision. However, the evidence also informed the court that the father has multiple parenting strengths including:

a) It was apparent to the court how much the father loves his children.

b) Everyone agreed that the children love the father. They are proud of him, look up to him and seek his approval. He is a charismatic person.

c) The father is proud of the children. He revels in their accomplishments, whether they are in school or in athletics. He is involved in A.’s extra-curricular activities. He attends at his practices and games.

d) The father teaches and engages the children in their religion and culture.

e) The father has much to teach the children about athletics. He is a professional athlete and trainer.

f) The father has worked very hard to integrate the children into his extended family. The children have a very good relationship with their half-siblings and the paternal family.

g) The father involves the children in many different activities and takes them on many outings.

h) The father is able to meet the children’s physical needs while they are in his care.

i) With the exception of involving the children in adult matters, the father treats the children well.

[155] The court finds that the father’s gym has been a home away from home for the children. They are very comfortable at the gym and enjoy spending time there with the father. They have developed friendships at the gym. It has been the site of many happy family get-togethers for them.

[156] The court recognizes the mother’s concerns about the father’s supervision of the children at the gym and his lack of insight into problems with the children’s behaviour. However, the court finds that a complete prohibition of the children attending the gym is not in their best interests. Other terms to address these concerns are more appropriate.

[157] The children are used to spending considerable parenting time with the father. It is important to their development, stability and sense of identity. This should continue.

[158] However, for the same reasons that the court ordered the children to have their primary residence with the mother and for her to have sole decision-making responsibility for them, it is not in the children’s best interests to order equal parenting time. The level of communication between the parties is far too poor to coordinate the care of the children. The children need the stability and continuity that the mother better provides for them.

[159] Further, it is in the children’s best interests to reduce their exposure to adult conflict. It is also in their best interests to protect the mother from the father’s controlling and coercive conduct. Otherwise, there is a risk that the mother’s ability to parent the children will be compromised. This means that boundaries must be clearly established by the court and that transitions and interactions between the parties should be reduced.

[160] It is also important to create a schedule that will ensure that the children attend school and daycare on time each day. The parenting schedule the parents had last year did not achieve this. It was too unpredictable and chaotic. The parents both did a poor job handling the children’s school attendance. They blamed each other for this. The frequent parenting transitions probably played a large role in this chaos. Further, the father testified that he kept the children up until 9 or 9:30 p.m. This is too late for the children. The mother has a more structured schedule and puts the children to bed at 8 p.m. on weekdays.

[161] The court agrees with the mother that the alternate weekend visits should be extended until Monday morning. The court will extend the parenting time to Tuesday morning, if the father has parenting time on a long holiday weekend.

[162] The court also agrees with the mother that there should be no mid-week overnight visits during the school year.

[163] During the school year, the father shall have mid-week parenting time each Monday and Wednesday from after school and daycare until he returns the children to the mother’s home at 6:30 p.m. This will provide stability and structure for the children during the school week.

[164] During the two-week winter school break, the March school break and the summer, the father can have more parenting time. It will take place from 9:00 a.m. on Tuesday until 6 p.m. on Thursday during those weeks. The alternate weekend visits will continue. There will be no Monday visits during those weeks.

[165] The mother testified that the children have much better visits with the father when they do not take place at the gym. The court will strike a balance between this concern and the benefits of the children attending the gym and order that the father may only take the children to the gym during one of his two mid-week visits during the school year. He is free to take them to the gym during the weekend and the holiday parenting times.

[166] The father shall ensure that the children are fully supervised whenever they attend the gym.

[167] The father shall not involve the children in asking the mother to spend additional parenting time with him. He also shall not involve the children in asking the mother for permission to participate in activities. These are conversations that he should have directly with the mother.

[168] The court will not order the right of first refusal requested by the mother if the father is not available during his parenting time. He should have the right to choose who cares for the children if he is unavailable for all or part of his parenting time, just as the mother is free to make this choice during her parenting time.

Part Eleven – The Start Date for Support

Legal Considerations

[169] The court’s authority to make retroactive support orders is contained in clause 34 (1) (f) of the Family Law Act. This clause reads as follows:

Powers of court

34 (1) In an application under section 33, the court may make an interim or final order,

…….(f) requiring that support be paid in respect of any period before the date of the order;

[170] Any support claimed after an application is issued is prospective support, not retroactive support. See: Mackinnon v. Mackinnon.

[171] In Colucci v. Colucci, 2021 SCC 24, the court set out the framework that should be applied for applications to retroactively increase support in paragraph 114 as follows:

a) The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.

b) Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.

c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.

d) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors continue to guide this exercise of discretion, as described in Michel. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.

e) Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

[172] This framework in Colucci addresses a request to retroactively increase the support contained in an order or an agreement. Courts have found that this framework should also be applied, with necessary modifications, for an original request for retroactive support. See: M. A. v. M.E., 2021 ONCJ 555; A.E. v. A.E., 2021 ONSC 8189.

[173] In an original application for retroactive support, there will be no need to meet the threshold requirement of establishing a material change in circumstances, as required in Colucci. The first step will be to determine the presumptive date of retroactivity as described in Colucci. The second step will be to determine if the court should depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors [4] will guide the exercise of that discretion, as described in Michel v. Graydon, 2020 SCC 25. The third step will be to quantify the proper amount of support for each year since the date of retroactivity, calculated in accordance with the guidelines.

Analysis

[174] The mother asks that the support order start on February 1, 2020 – when the parties separated.

[175] The father asks that the support order start on November 1, 2022.

[176] The father acknowledged that the mother frequently asked him for child support from the time that they separated in February 2020.

[177] The court finds that the mother provided the father with effective notice of her claim for support as of February 1, 2020. This is the presumptive date that support should start.

[178] The court sees no evidentiary basis to deviate from the presumptive start date of support.

[179] The mother explained that she delayed in bringing her application for support because she was afraid of the father’s reaction. This fear has been borne out as he has significantly reduced his support payments to her since she claimed support against him. This was an understandable reason for delay. See: Michel v. Graydon, 2020 SCC 25, paragraph 86.

[180] The father has engaged in blameworthy conduct. He has failed to pay adequate support for the children. He did not provide timely or complete financial disclosure to the mother so that she could properly assess his support obligation.

[181] The mother described how the circumstances of the children have been disadvantaged by the father’s failure to pay adequate child support. This has adversely affected her ability to put A. into activities and to purchase clothes, uniforms and other items for the children. She deposed that she has had to work longer hours to support the family. This has deprived the children of parenting time with her.

[182] A retroactive support order may cause the father some hardship. He has two other children to support. However, not ordering retroactive support would cause the mother and the children hardship. The father created this situation by avoiding his financial responsibilities to the children.

Part Twelve – The Father’s Income

Positions of the Parties

[183] The mother asks the court to impute the father’s annual income at $70,000 for support purposes.

[184] The mother submitted that the father is either earning this level of income and hiding it from the court or that he is capable of earning this level of income.

[185] The father submitted that he is prepared to pay child support of $550 each month. This would be the guidelines table amount for two children based on an annual income of $36,300. The father said that he is not earning that much income.

[186] The father deposed that he is a professional mixed martial arts fighter. He said that he has not earned much money as a fighter. He said that he had his first professional fight in several years in December 2021 and earned $2,000. He said that his training expenses for the fight likely exceeded what he earned.

[187] The father expressed optimism that he will become a UFC fighter at the highest level and start to earn significant income. However, his plan has been derailed by a serious knee injury. He said that he does not know when he will be able to fight again.

[188] The father said that he incorporated a company and opened his gym in 2017. He is the sole owner and operator of the business. The gym runs classes in mixed martial arts. It also holds fight nights.

[189] The father said that his business has struggled, primarily due to the pandemic. He provided documentation showing that he is persistently late in paying rent for the business. He is presently two months in rent arrears.

[190] The father expressed optimism that his business will eventually be successful. He said that he wants to build this for his family.

[191] The father testified that he also does personal training. He said that he had more clients during the early phase of the pandemic but lost this business when other gyms re-opened.

[192] The father filed notices of assessment setting out his following annual income:

2018 - $8,000

2019 - $8,000

2020 - $20,000

[193] The father did not file his 2021 income tax return or notice of assessment despite a court order to do so.

[194] The father filed the corporate tax returns for his business at trial that set out the following:

2018 – Gross Revenue - $4,729 Net income – Minus $30,203

2019 – Gross Revenue - $72,086 Net income – Minus $10,618

2020 – Gross Revenue - $71,765 Net income – Minus $11,623

2021 – Gross Revenue - $80,353 Net income – Minus $3,023

Legal Considerations for Imputing Income

[195] Section 19 of the guidelines permits the court to impute income to a party as it considers appropriate.

[196] The jurisprudence for imputation of income sets out the following:

a) 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, [2002] O.J. No. 3731(Ont. C.A.).

b) The Ontario Court of Appeal in Drygala v. Pauli set out the following three questions which should be answered by a court in considering a request to impute income:

c) Is the party intentionally under-employed or unemployed?

(i) If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs, the needs of the child or reasonable health needs?

(ii) If not, what income is appropriately imputed

d) 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, [2009] O.J. No. 1552. (Ont. C.A.). However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.

e) Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.

f) A self-employed person has the onus of clearly demonstrating the basis of his or her net income. This includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes. See Whelan v. O’Connor, [2006] O.J. No. 1660, (Ont. Fam. Ct.). This principle also applies where the person’s employment income is derived from a corporation that he or she fully controls. See: MacKenzie v. Flynn, 2010 ONCJ 184.

g) As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, [2000] O.J. No. 453, (Ont. Fam. Ct.).

h) Where a party chooses to pursue self-employment, the court will examine whether this is a reasonable choice in the circumstances. See: Smith v. Smith, 2012 ONSC 1116.

i) The court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.

j) The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines and impute income. See: Smith v. Pellegrini, [2008] O.J. No. 3616, (Ont. S.C.); Maimone v. Maimone, [2009] O.J. No. 2140, (Ont. S.C.). The parent must make full and complete financial disclosure to ensure that the information required to make a decision on the issue is before the court. Charron v. Carriere, 2016 ONSC 4719.

k) A person’s lifestyle can provide the basis for imputing income. See: Aitken v. Aitken; Jonas v. Jonas; Price v. Reid, 2013 ONCJ 373.

Analysis

[197] The assessment of the father’s income was made very difficult due to his lack of timely or complete financial disclosure.

[198] The father did not adequately comply with the disclosure orders made by this court.

[199] The father filed no evidence about his 2022 income.

[200] The father did not meaningfully explain how his net business income was determined or provide the necessary supporting documentation to make sense of it.

[201] The father could not explain how his income was calculated at trial. He said that his accountant did this.

[202] The father filed only one financial statement for court – sworn on May 2, 2022. He claimed that he earned monthly employment income of $670 and monthly self-employment income of $1,300. He could not explain how he differentiated this income or how he arrived at these figures.

[203] An adverse inference is drawn against the father.

[204] The mother believes that the father earns cash income. She led evidence that:

a) The father holds fight nights at the gym.

b) The father uses the gym for after hours parties and earns cash.

c) The father does personal training for cash.

d) The father now has a recording studio at the gym and is likely earning income from this business.

e) The father told her that he and his gym are going to be the subject of a documentary.

f) The father is organizing an athletic retreat to Columbia.

[205] The father disclosed none of this evidence in his financial statement or trial affidavit. He agreed that fight nights and after hours parties are held at the gym. He said that any income is included in the corporate tax returns. He agreed that he does personal training. He said that this income is also included in the corporate tax returns.

[206] The father said that the recording studio in the gym belongs to a friend and that they only use it for fun. He agreed that he and the gym will be part of a documentary on Amazon Prime. He said that he was paid $300 cash for this. He acknowledged that he has been asked to be an instructor on the Columbia trip in January 2023. He denied organizing it. He expects to be paid $2,500 to $3,500 for this.

[207] The court finds that the father’s personal and corporate tax returns provide little assistance in determining his income. He claims that he is earning little income and that his business is operating at a loss. However, he is maintaining a lifestyle that indicates he is earning much more income.

[208] The court accepts the father’s evidence that the pandemic adversely affected his ability to earn income in 2020 and 2021. Gyms were closed for a long period of time. The father was restricted to arranging private personal training.

[209] The father stated that he is an expert in mixed martial arts and that he is a high level trainer due to his background and reputation as a professional fighter.

[210] The court will impute the father’s annual income at $40,000 for 2020 and 2021 for the purpose of the support calculation.

[211] The assessment of the father’s income for 2022 is different. The gym had reopened and the father was capable of earning more income doing personal training.

[212] The father’s financial statement sworn on May 2, 2022 is a good place to start in assessing what income he is likely earning. The father deposed in his financial statement that he is personally incurring annual expenses of $52,497. At trial, he confirmed that this figure was accurate.

[213] At trial, the father also confirmed that he was still paying these monthly expenses, with the exception that he was not paying the entire $600 monthly support for his other two children. The court finds that the father is now spending about $48,000 annually.

[214] The father confirmed at trial that the assets and debts set out in his May 2, 2022 financial statement remain the same, with the exception that his support arrears have increased by about $600. The father confirmed that he had no other sources of revenue from May 2, 2022 until the trial.

[215] This analysis informs the court that the father is earning much more than the $23,640 income claimed in his financial statement. It means he is earning sufficient income to maintain annual expenses of at least $48,000.

[216] The support analysis does not stop there. Assuming the father will declare income of $23,640 in his income tax return, it is appropriate in these circumstances to gross-up his income, as he is declaring and paying tax on substantially less income than he is actually earning. This is done to ensure consistency of treatment where a party is found to have arranged his affairs to pay less tax on income. See: Sarafinchin v. Sarafinchin, [2000] O.J. No. 2855 (Ont. S.C.).

[217] A software analysis that will be attached to this decision reveals that after grossing up the annual expenses of $48,000 the father is maintaining, his annual income is $57,378.

[218] If the father is not actually earning this income, the court finds that he is deliberately under-employed and is capable of earning this level of income as a personal trainer.

[219] The father is a skilled personal trainer and could work for another gym. He advised the court that if he was hired to teach classes he would be paid between $50 to $60 per hour. He said that personal trainers hired by gyms are paid between $60-100 each hour, depending on their skill level. Depending on negotiations, the gym would keep 30-50% of this income.

[220] The court understands that the father wants to build his business. He said that closing the gym would also stop his career as a mixed martial arts fighter. However, according to his corporate returns, the business has operated at a loss since he opened it in 2017. He is not earning any income as a fighter. The children need support now – not at some indefinite time in the future. If he is not earning income from his business, it is time to look for a job. He would be a very attractive employee for any gym.

[221] The father’s annual income will be imputed at $57,378 starting on January 1, 2022.

Part Thirteen – The Father’s Support Obligations and Credits

[222] The guidelines table amount for two children at an annual income of $40,000 is $597 each month.

[223] The father did not dispute the mother’s evidence that he paid her support of about $2,200 in 2020 and $2,400 in 2021. The father will be credited for these payments.

[224] The support arrears as of December 31, 2021 are $9,131, calculated as follows:

23 months @597 each month

= $13,731

Less: Support paid

= $4,600

Balance:

= $9,131

[225] The guidelines table amount for two children at an annual income of $57,378 is $875 each month. This means that support of $8,750 has accumulated to date in 2022.

[226] The father will only be credited with support payments made in 2022 as reflected in the records of the Family Responsibility Office. The mother should advise the Family Responsibility Office of any payments she has received during 2022.

[227] The father has conducted himself very poorly when it comes to paying child support. The court will not make an order permitting payment of arrears over time. The father will have to negotiate this directly with the Family Responsibility Office.

Part Fourteen – Conclusion

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

a) The children shall have their primary residence with the mother.

b) Both parties may make decisions about the children’s cultural, religious and spiritual training, as they see fit, when the children are in their care.

c) The mother shall otherwise have sole decision-making responsibility for the children.

d) The mother shall inform the father of any contemplated significant decision regarding the children in writing. Within 7 days after receiving this information, the father may provide the mother with a written response containing his view. If the parties do not agree, or if the father does not respond within 7 days, the mother shall make the final decision and advise the father about it.

e) The mother shall advise the father in writing of all appointments with any doctors, teachers or other service providers for the children. She shall keep him updated with their names and contact information.

f) The parties shall immediately notify each other by phone, text or email if a child has a medical emergency while in their care. They shall advise the other parent of the nature of the emergency, where the child has been taken for treatment and the name of any doctor treating the child.

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

h) The father is to deliver the children’s health cards to the mother within 7 days. He may keep photocopies of these cards.

i) The mother may obtain or renew government documentation for the children, including passports and renewals of passports, without the father’s consent.

j) The mother may travel with the children outside of Canada, for vacation purposes, without the father’s consent.

k) The father may travel with the children outside of Canada, for vacation purposes, but only with the written and notarized consent of the mother, or by court order.

l) The father shall have parenting time with the children on the following terms and conditions:

(i) Alternate weekends from Friday after school and daycare until he returns the children to school and daycare on Monday at 9 a.m. These weekends will extend until Tuesday at 9 a.m., if the weekend falls where the Monday is a statutory holiday.

(ii) During the school year, on Mondays and Wednesdays from after school and daycare until he returns the children to the mother at 6:30 p.m. The father may only take the children to the gym on one of these two days during these weeks. He may take the children to the gym on his weekends. He shall ensure that they are supervised at the gym at all times.

(iii) During the two-week winter school break, the March break and the summer school break, Tuesdays from 9 a.m. until Thursdays at 6 p.m. The father shall transport the children for the parenting exchanges. The alternate weekend visits shall continue during these weeks. The Monday visits shall not take place during these weeks. The father may take the children to the gym during this parenting time. He shall ensure that they are supervised at the gym at all times.

(iv) The mother shall provide the father with the children’s schedules for extra-curricular activities and the father will be entitled to attend at them. The mother shall also be entitled to attend the children’s extra-curricular activities when they take place during the father’s parenting time.

(v) The father shall not involve the children in asking the mother to spend additional parenting time with him. He also shall also not involve the children in asking the mother for permission to participate in activities.

[229] A final support order shall go as follows:

a) Based on an annual imputed income of $40,000, the father shall pay the mother child support of $589 each month starting on February 1, 2020. This is the guidelines table amount for two children.

b) Based on an annual imputed income of $57,378, the father shall pay the mother child support of $875 each month starting on January 1, 2022. This is the guidelines table amount for two children.

c) The father shall be credited for support paid of $4,600 up until December 31, 2021.

d) The father shall only be credited for support paid in 2022 as reflected in the records of the Family Responsibility Office. The mother shall advise the Family Responsibility Office of what support payments the father has made to her in 2022.

e) The father shall provide the mother by June 30th each year with complete copies of his personal and corporate income tax returns and notices of assessment and the financial statement for the previous year-end of the corporation.

f) A support deduction order shall issue.

[230] If either party seeks costs, they shall serve and file written submissions by November 7, 2022. The other party will then have until November 21, 2022, to serve and file their written response (not to make their own costs submissions). 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.

Released: October 24, 2022

Justice S.B. Sherr

Footnotes

[1] A copy of that order was not provided.

[2] The father eventually permitted them to go on the trip.

[3] The mother said most of these lates and absences correlated to when the father overheld the children.

[4] 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.