V.S.B. v. B.L.O., 2022 ONCJ 506

ONTARIO COURT OF JUSTICE

CITATION: V.S.B. v. B.L.O., 2022 ONCJ 506

DATE: November 7, 2022

COURT FILE No.: 20-15664-A1

BETWEEN:

V.S.B.

Applicant

— AND —

B.L.O.

Respondent

Before Justice W. Kapurura

Heard on October 11, 12, 13, 14 and 17, 2022

Reasons for Judgment released on November 7, 2022

Dana Lue................................................................................................ counsel for the applicant

B.L.O………………….….. …………………………..……………………….. acting in person

JUSTICE W. KAPURURA:

Part One – Introduction

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

[2] The child presently lives primarily with the Applicant mother, V.S.B., and has parenting time with the Respondent father, B.L.O., every Thursday from 11:00 a.m. until Friday at 11:00 a.m.

[3] The parties attended a 5-day in-person trial. The mother was legally represented. The father was self-represented.

[4] The mother seeks orders for sole decision-making responsibility and primary residence of the child. She seeks an alternate weekend parenting schedule for the father.

[5] The mother asks the court for a police enforcement clause and an order requiring the father to seek leave before bringing a motion to change parenting orders.

[6] Both parents are requesting terms for a holiday schedule and various incidents of parenting.

[7] The mother seeks child support and an order imputing the father’s annual income at $55,000.00 for purposes of support calculation. The mother seeks a contribution towards the child’s daycare expense.

[8] The father seeks joint decision-making responsibility with the mother, with a consultation clause requiring that in the event of a disagreement, the mother shall have final decision-making authority.

[9] The father seeks an increase in his parenting time, starting with two parenting days each week, and gradually increasing to a parenting schedule that is close to an equal time-sharing parenting arrangement.

[10] The father asks that child support be calculated using his stated annual income of $23,000.00 and that he not be ordered to contribute towards the child’s daycare expenses.

[11] The father seeks to change the child’s legal name to a different name.

[12] At a trial management conference held on March 30^th, 2022, the Honourable Justice P. Jones provided the parties with trial directions. The mother was ordered to provide affidavits for her examination-in-chief and for one of her witnesses. The mother complied with the trial management order.

[13] As per Justice Jones’ order, the father was ordered to file affidavits for his examination-in-chief and for two of his witnesses. The father did not comply with the order. As a preliminary issue at this trial, the mother’s counsel objected to the father calling the two witnesses (that is, the father’s friend and the paternal grandfather). After hearing submissions, the court ordered the father to provide the mother with will-say statements of the two witnesses. The father was then allowed to provide oral testimony for his examination-in-chief.

[14] The court heard from the mother and one additional witness was called by the mother. The court heard from the father and the father’s three witnesses.

[15] The parties filed voluminous document briefs for the trial. Both parties tried to admit extensive materials from their previous motions as part of their evidence, including affidavits. After the court explained the concept of relevance and related evidentiary rules, the parties decided, on their own, not to include most of the materials. Both parties were told that they could cross-examine using any of the materials. Both parties properly admitted specific documents from these briefs into evidence.

[16] The primary issues for the court to decide are:

i. What parenting orders regarding primary residence, decision-making responsibility, parenting time, and incidents of parenting are in the child’s best interests?

ii. Should the court make an order for police enforcement of parenting orders?

iii. Should the father pay child support to the mother? If so, when should child support start?

iv. What is the father’s annual income for purposes of support calculation? Should income be imputed to him?

v. If the court finds that child support arrears are owed to the mother by the father, how should the arrears be paid?

vi. Does this court have jurisdiction to make the orders sought by the father regarding the child’s legal name? If so, what orders should this court make regarding the child’s legal name?

vii. Should the court make an order requiring the father to seek leave before bringing a motion to change parenting orders?

Part Two – Brief background facts

[17] The mother is 42 years old, and the father is 48 years old.

[18] The mother and the father are biological parents to the child, J.B., who is now two years old. He is the mother’s only child and has resided primarily with his mother since birth.

[19] The father has a 4-year-old daughter, M.O., from a different relationship. Ms. B is M.O.’s mother.

[20] The mother works with Canada Border Services Agency as a border services officer.

[21] The father works part time as a massage practitioner (or orthotherapist) and earns additional income from a teaching program that he designed for aestheticians on how to improve massage in their aesthetic services. He also works part time for his family’s ice cream business based in Ottawa.

[22] The father resides in a 2-bedroom apartment in Cabbagetown (Toronto).

[23] The mother resides in a condominium unit in Etobicoke (Toronto).

[24] The mother is of Jamaican heritage and has extended family in Jamaica.

[25] The father was raised in an Orthodox Jewish family. He was born and raised in Ottawa. He attended an Orthodox Jewish private school.

[26] The parties met online and began a casual intimate relationship in April 2019. The relationship was brief, lasting for less than a month.

[27] The parties never lived together.

[28] In June 2019, the mother learned that she was pregnant. The pregnancy was high risk.

[29] The parties separated before the birth of the child.

[30] At the request of the father, a paternity test was taken in April 2022, which confirmed him as the child’s biological father.

[31] The child was celebrated at a bris (a Jewish ceremony of circumcision) by the father, the father’s family, and the mother’s family when he was 8 days old. The mother did not attend as she was still in hospital.

[32] Ms. B, who testified at this trial on behalf o the mother, is mother to the father’s four-year-old daughter, M.O. Ms. B and the father were involved in family court litigation in this court which ended following an 8-day trial. The trial was before the Honourable Justice O’Connell. On May 6, 2022, Justice O’Connell released her decision granting joint decision-making responsibility to the father and Ms. B., with Ms. B having final decision-making authority in case of a disagreement.

[33] The current parenting schedule for the father is as follows:

Thursday at 11:00 a.m. until Friday at 11:00 a.m. (which includes time in daycare)

[34] The child attends daycare each day, including Thursday and Friday, from 9:00 a.m. until 4:00 p.m. Therefore, the father is exercising his parenting time from Thursday at 4:00 p.m. after daycare until Friday at 9:00 a.m. when he drops off the child at daycare.

[35] The cost of daycare is paid solely by the mother.

[36] The mother filed her Application on February 26^th, 2020. In response, the father filed an Answer dated August 10^th, 2020.

[37] The father does not agree with the child’s legal name. On November 4^th, 2020, Justice Finlayson made an order requiring the father to call the child by his legal name.

[38] On May 5^th, 2021, Justice Katarynych made a further order requiring the father to use the child’s legal name.

Part Three – Parenting

3.1 – The mother’s position

[39] The mother described the father as aggressive, manipulative, and self-serving. The parties separated when the mother decided that she wanted to have a gender reveal party. The mother had asked her genetic counselor to disclose the child’s sex to the mother’s sister so that the sister could plan a reveal party. The father was enraged and demanded that, as the child’s father, he had a right to immediately know the child’s gender. The mother gave in to the father’s demands and allowed her sister to disclose the child’s gender to the father. The parties broke up following this incident.

[40] The mother testified that following the breakup, the father was singularly focused on setting up a shared parenting arrangement, demanding that, as the child’s father, he has a right to have the child in his care for half the time.

[41] The mother described the father as showing no concern towards the mother’s high-risk pregnancy. The mother was attending several specialist appointments, including a neonatal cardiologist. The mother also had to attend the Odette Cancer Centre due to unusual growths on her ovaries.

[42] The mother described the father’s communication toward the mother as abrasive, demeaning, and condescending. The mother provided several emails and text messages sent to her by the father corroborating this.

[43] Following the parties’ separation, the father sent a letter to the mother on November 25, 2019 (before the child’s birth), stating that:

I realized that I was going to be just like your father, a manipulated man on the sidelines of all these women doing whatever they want without respecting the father…What type of respect will I command from you? [emphasis added]

[44] In the same letter, the father wrote:

… if our son comes out of you without an agreement in place, there are already processes in place for a father (that is not living with the mother) to follow. …You will have to get a lawyer to follow the process properly between us. Your lawyer will be a $5000 retainer which will be used up in the first month, then $5000 more.. [emphasis added]

[45] In a text message sent to the mother on December 6^th, 2019 (prior to the child’s birth), the father wrote to the mother that she was going to spend tens of thousands of dollars only for the court to tell her that he is the child’s father, and he would get an equal time-sharing parenting arrangement.

[46] The father reminded the mother that he, the father, had been in court with his daughter’s mother since the daughter was 4 months old, and they had been in court for 20 months.

[47] The mother had to retain a lawyer before the child’s birth to assist her in negotiating with the father.

[48] According to the mother, on the day of her scheduled c-section, the father arrived unannounced at the hospital and brought letters for the nursing staff and the mother’s obstetrician, Dr. Susan Shinoff. In the letter, filed in evidence, the father demanded that, as the child’s father, he had a right to know about the child’s health and state. The father identified himself as the mother’s husband. The mother did not want the father at the hospital and, instead, had asked her sister to be a support person at the hospital. The father strongly believed that he had the right to attend at the hospital even though his relationship with the mother had ended. According to the mother’s evidence, the father’s attendance at the hospital caused a scene, resulting in the head of nursing staff and the mother’s doctor having to come out to speak to the father directly. To de-escalate the situation, the hospital staff allowed the father to attend briefly to cut the child’s umbilical cord.

[49] The mother’s evidence was that the father has continued to show controlling and manipulative behaviour following the child’s birth.

[50] One of the contentious issues between the parties related to the child’s bris. The father wanted the child to be circumcised and to participate in the bris ceremony. The bris ceremony would occur on the 8^th day following the child’s birth.

[51] The mother testified that initially she was agreeable but became apprehensive after she learned that, as part of the ceremony, the child’s parents were required to confirm that the child would be raised Jewish (and converted to Judaism exclusively) and would have no other religious affiliation. The mother is Christian and planned to introduce the child to Christianity as well.

[52] The mother tried to suggest the Jesin Circumcision Clinic which provides ritual Orthodox and non-ritual circumcision with a physician and a Mohel. However, according to the mother, the father made it very clear that there was no room for compromise, writing to the mother:

..I have a birthright to give my only son on this planet a briss…No one has the right to take that birthright away from myself.. No one! No one!..I am trying to be very clear so you will know that I am not asking your permission to give my son a briss..If you really want to be stubborn, I will meet the Rabbi and Mohel myself, you are not needed if you don’t want to be there…I will be sharing Judaism with my son, and I will do it the way I know how, as a Jew, not through you or your permissions.

[53] The mother reached out to the rabbi and explained her concerns. The mother was assured that the ceremony would be conducted in a manner that respected the faith of both parents. The mother testified that on the date of the bris, she was advised by her doctors that she could not be discharged as her blood pressure was too high. The mother tried to reach out to the father to request that the bris be moved by one day to allow the mother to attend. As per the mother’s evidence, the father was not empathetic. The father accused the mother of lying about her date of discharge and demanded that she reimburse his parents the $1,300.00 that they had paid for the ceremony.

[54] Eventually, the mother reluctantly allowed the child to be removed from the hospital to attend the ceremony. The mother remained in the hospital.

[55] About a month after the child’s birth, the mother commenced this proceeding due to her parenting challenges with the father.

[56] The mother testified that the father has detailed how the child is disadvantaged because the mother could not produce breast milk.

[57] When the child was about a year old, the father started feeding the child with smoothies that had protein powder. When the mother became concerned and asked for more information, the mother was accused of micromanaging the father’s parenting time.

[58] When the father had a lawyer through Legal Aid Ontario, he mocked the mother that he had a free lawyer and she was paying privately, writing to the mother on April 13, 2021, that:

So happy to inform you I have a brand new Legal Aid certificate and a new lawyer. Yay! Round 2 begins! I am guessing you have given close to $35k to your lawyers so far..

[59] According to the mother, communication between the parents remains poor.

[60] The mother testified that the father is constantly speaking poorly of the child and criticizing his development and behaviour. The mother alleges that the father compares the child endlessly to his half-sister, M.O, and the child seems to come up short each time.

[61] The mother called Ms. B as one of her witnesses. Ms. B is the mother to M.O, the father’s 4-year-old daughter. The father and Ms. B communicate via The Our Family Wizard application. Ms. B described the father as repetitive and pushy in his communication. When asked to describe her communication with the father, Ms. B stated that his communication is not collaborative nor receptive to her views and wishes.

[62] Ms. B told the court that when M.O. goes to the father’s home with a temporary tattoo, Ms. B receives demeaning messages from the father.

[63] Ms. B further testified that her daughter’s recent dental appointment did not proceed as scheduled because the father demanded that he had to be present. He was unavailable due to his trial in this matter. Ms. B wanted the dental appointment to proceed as scheduled since their daughter has a visible cavity. The appointment had to be rescheduled to another date.

[64] Ms. B filed an affidavit for her examination-in-chief. In her affidavit, she stated that the father was emotionally, verbally, and financially abusive during their relationship and has continued to be controlling and abusive since their separation. For example:

i. The father wanted their daughter to be circumcised. After Ms. B opposed, the father told Ms. B that she should abort the child.

ii. After their daughter’s birth, the father refused to allow Ms. B any visitors except those approved by him.

iii. Following separation, the father repeatedly called the police and the Children’s Aid Society on Ms. B despite being told that she and child were safe.

iv. The father sent aggressive and abusive text messages to Ms. B after they separated.

v. Ms. B is blamed by the father and accused of poor parenting whenever their daughter is ill or when she has minor bruises.

vi. The father never disclosed to Ms. B that he had a son (the child in this matter) until she learned from their daughter as their daughter kept talking about her ‘brother’. The father was spending time with both children without disclosing to Ms. B that their daughter had a half-brother.

3.2 - The father’s position

[65] The father seeks the following gradual increase in his parenting time:

Start date	Proposed parenting time
November 1, 2022	Two days every week
April 1, 2022	Five days in a 2-week cycle
September 1, 2023	Six days in a 2-week cycle
February 1, 2024	Fourteen days in a month

[66] The father denies all allegations of abuse and control leveled against him. However, the father does not deny sending the several text messages and emails that were submitted into evidence by the mother.

[67] The father’s evidence was that the mother has always denied him the opportunity to be a father to his son. He testified that the mother:

i. Refused to move in with him when she was pregnant.

ii. Refused to disclose the child’s gender to him.

iii. Refused to allow him to help prepare the mother’s home for the arrival of the baby.

iv. Refused to allow him to attend medical appointments.

v. Made him feel that he was being pushed away.

vi. Refused to allow him to participate in naming the child.

vii. The mother has never introduced him to the child, and the child does not call him ‘daddy’.

[68] On the parenting issue, the father stated the following:

i. He prefers an equal time-sharing parenting arrangement just like any ‘normal Canadian man’.

ii. He would want the mothers of his children to facilitate more play time between the two children.

iii. Based on his current parenting arrangement with his daughter, M.O, the two children are together in the father’s care about twice each month.

iv. The mother has never introduced him to the child as ‘daddy’.

v. It is important for the child to attend Jewish ceremonies, milestones, and events.

vi. He would want to make ‘Jewish decisions’ when the child is in his care.

vii. He has never been offered to participate in decision-making by the mother.

viii. When describing his parenting relationship with the mother, the father repeatedly said that he has been “in a state of gaslighting” and he feels like a deer in headlights. He described the mother as being cruel to him.

ix. He asserted that he is not a criminal, had not been arrested, and did not “rape or beat” the mother, and as a result, he should be an equal parent to the child.

x. He called the Jewish Child and Family Service for guidance when the mother was giving birth in the hospital.

xi. The day after the child was born, he called Legal Aid Ontario to apply for a legal aid certificate.

xii. He does not agree with any of the child’s current legal names.

[69] The father testified that he was told that he was not welcome at the hospital on the day the child was born. He then decided to write a letter to the doctor and nursing staff advising them that he felt like he was being pushed out, but all he wanted was to cut the umbilical cord and to have skin-to-skin with the baby. The father denied barging into the hospital room as he was not asked to leave.

[70] The father’s evidence was that he brought flowers to the hospital for the mother and was only able to cut the umbilical cord (and to have skin-to-skin) because of the letters he provided to the medical staff.

[71] On the issue of the bris ceremony, it was the father’s evidence that the mother intentionally did not tell him that she was not being discharged from the hospital, only telling him a few hours before the scheduled bris ceremony. The father described this as “gaslighting”. The baby was eventually brought to the father, and he attended the bris ceremony. The mother’s family members also attended. The father testified that he named his son at the bris ceremony (but the mother gave the child a different name on the birth registration documents).

[72] The father described as positive factors that the mother is a university graduate, has a good salary, is stable, and has a medical/dental plan for their son and RESPs.

[73] The father told the court that Ms. B was not a credible witness because, when the father separated from her, Ms. B went on to drink for three months while pregnant and lied to the father about it.

[74] The father’s friend, Loren Harssar, and the paternal grandfather testified on behalf of the father. They both described the father as:

a. A good father to both his children.

b. He interacts well with his two children.

c. They have no parenting concerns and have not witnessed any concerning parenting issues.

[75] Shari Burrows, a clinician with the Office of the Children’s Lawyer (OCL), testified on behalf of the father. Ms. Burrows conducted a clinical investigation on the case involving the father and Ms. B and testified at their trial.

[76] The OCL was not involved in this case.

[77] Ms. Burrows testified that during her investigation, the father did not disclose to her that he had a short-term relationship with the mother of the child in this matter, and only became aware during Ms. B’s trial. In the trial, Ms. Burrows filed a report dated January 8^th, 2020, in which she made a recommendation for the father to have sole custody (decision-making responsibility) of the father’s daughter, M.O., with a consultation clause prior to making a decision. During her testimony at this trial, Ms. Burrows told the court that she had struggled to formulate her recommendation on decision-making. Ms. Burrows said, on one hand, she had a father with an abusive communication style. On the other hand, she had a mother (Ms. B), who had addiction challenges and was making poor decisions. Therefore, Ms. Burrows had to balance those factors in making her recommendations.

[78] Ms. Burrows testified that she made a therapeutic recommendation for the father to obtain insight into his communication style.

[79] During her involvement in Ms. B’s matter, Ms. Burrows observed the father with his daughter in the father’s home. Ms. Burrows made the following observations:

i. The daughter was comfortable with the father.

ii. The father provided the child with learning opportunities.

iii. He made sure his daughter was safe.

iv. He was open to Ms. Burrows’ suggestions.

Part Four – Decision-making responsibility and primary residence

4.1 Legal considerations

[80] Subsection 18 (1) of the Children’s Law Reform Act (the Act) defines decision-making responsibility 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.

[81] 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.

[82] 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,

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

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(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.

[83] The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Phillips v. Phillips, 2021 ONSC 2480. 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.

[84] In Barendregt v. Grebliunas, 2022 SCC 22, the court stated that determining the best interests of the child is a heavy responsibility, with profound impacts on children, families and society (para 8).

[85] Subsection 33.1 (2) of the Act addresses the importance of protecting a child 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.

[86] The Ontario Court of Appeal in Kaplanis v. Kaplanis 2005 1625 (ON CA), [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 cannot 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.

[87] 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, 2009 6423 (ON S.C.).

[88] A starting point to assess a child’s best interests when making a decision-making or 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 order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615. Also see: J.N. v. A.S., 2020 ONSC 5292; A.L.M. v. V.L.S., 2020 ONCJ 502; M.R.-J. v. K.J., 2020 ONCJ 305; Abbas v. Downey, 2020 ONCJ 283; N.D. v. R.K., 2020 ONCJ 266.

[89] 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.

[90] In paragraph 504 of Izyuk v. Bilousov, 2011 ONSC 6451, 2011 CarswellOnt 12097 (SCJ), the court writes:

In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children- particularly children already exposed to the upset of family breakdown- look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

[91] Ultimately, the court must determine if a joint decision-making responsibility order, or an order allocating any decision-making responsibility between the parties, is in the child’s best interests. The court also has the option, if it is in the child’s best interests, to leave some or all aspects of decision-making responsibility silent. See: M. v. F., 2015 ONCA 277.

4.2 Analysis

[92] The child is two years old. He is currently in the primary care of his mother.

[93] The parents’ conflict started before the birth of the child and has continued to present.

[94] For his entire life, the child’s parents have been in conflict.

[95] It required two court orders to have the father call the child by his legal name.

[96] Parental conflict is not in the child’s best interests.

[97] The parents have disagreed on almost every major decision. They have no history of positive communication. For example:

i. They did not agree on the preparation arrangements for the child prior to his birth.

ii. They did not agree on who was to attend at the hospital.

iii. They cannot agree on the child’s name.

iv. They cannot agree on parenting time.

v. They have disagreed on issues pertaining to medical appointments.

[98] The parents provide conflicting accounts. The mother’s evidence is that she is a victim of the father’s abusive, controlling, and demeaning behaviour.

[99] The father’s evidence is that he is a loving father who is being denied an opportunity to be part of his son’s life.

[100] This court must consider a witness’ credibility. In assessing credibility, the Court is concerned with the witnesses’ truthfulness: See R. v. C.(H.), 2009 ONCA 56 at para. 41

[101] On parenting challenges between the parents, the court finds that the mother was a credible and reliable witness for the following reasons:

a. The mother was candid in her testimony and answered all questions. During cross-examination, despite the father’s argumentative approach, the mother was able to calmly address all questions.

b. The mother’s evidence regarding the father’s abusive and controlling behaviour was supported by the evidence she filed of the father’s several messages. The father did not deny sending the messages.

c. The mother’s evidence confirmed that prior to the child’s birth, the mother tried to involve the father, but it became very clear that the father was very controlling and only wanted everything to go according to his own plans.

d. Almost every correspondence written by the father to either the mother or to third parties, has a demand and/or is a criticism of the mother.

e. All witnesses who testified regarding the parties’ parenting relationship confirmed that the parents’ communication is not positive.

[102] The court found the paternal grandfather, the maternal grandfather, and Ms. Burrows to be credible witnesses regarding their evidence on the parenting relationship between the father and the mother. The maternal grandfather, who was called by the father, described the father as ‘abusive’. Ms. Burrows described the father as having an abusive communication style and made a recommendation for him to attend therapy.

[103] Ms. B, who testified on behalf of the mother, described the father as “persistent and pushy”.

[104] On the parenting challenges, the court finds that the father was neither credible nor reliable. The court makes the following findings:

a. The father is very disrespectful and demeaning towards the mother.

b. The father does not see any wrongdoing in his conduct towards the mother and does not take responsibility for his abusive conduct.

c. He does not acknowledge the mother as being another parent to the child.

d. The father lacks insight into how his behaviour is affecting the mother and his own son.

[105] The father’s messaging towards the mother is very concerning. The father had complete disregard for the mother’s health when the mother was in the hospital, giving birth. She had a high-risk pregnancy, delivered by c-section, and went for another surgery immediately following her c-section. During all that time, he was making incessant demands on her, when she was in pain.

[106] The court agrees with the mother that the father’s conduct is self-centred.

[107] The fact that the father prides himself in having a free lawyer funded by Legal Aid Ontario, speaks of ‘round two’ of legal proceedings, and mocks the mother for having to pay her legal fees privately, is very disrespectful and self-centred. The father’s behaviour in this regard may be perceived as an abuse of process.

[108] In Levely v. Levely 2013 CarswellOnt 1953, the court wrote:

12 Family Court proceedings are intended to be a means by which aggrieved parties can have their disputes arising after separation adjudicated upon by the court in a just, efficient and timely manner. Unfortunately, they all too often become a destructive tool which one party wields and manipulates in order to create further financial and emotional hardship for the other party. …

[109] As the child grows, the court is concerned about the things that the child will learn from the father. The father’s denigration of the mother is a chronic issue.

[110] In the recent Supreme Court of Canada decision of Barendregt v. Grebliunas, 2022 SCC 22, the court wrote about the impact of family violence, stating:

[143] 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.

[111] The recent amendments to the Act define family violence in the following terms:

18(1) In this part;

“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

“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,

(f) psychological abuse;

[112] The father has exhibited coercive and controlling behaviour towards the mother.

[113] This court must decide what parenting orders are in the child’s best interests. The father is seeking joint decision-making responsibility. The mother is seeking sole decision-making responsibility.

[114] In the case of S. (S.) v. K. (S.) 2013 ONCJ 432, 2013 CarswellOnt 10801 (Ont. C.J.) the 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:

(1) more or less likely to de-escalate or inflame the parents' conflict.

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

(3) 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.

[115] The father’s conduct and communication clearly show that the father is rights-based and overly litigious. He threatened to take the mother to court well before the child was born. As per Ms. B’s evidence, a dental appointment for the father’s daughter could not proceed as the father demanded that he must be present.

[116] It is not in the child’s best interests that any major decisions impacting upon the child be stalled due to a lack of consensus between the two parents. The fact that a dental appointment for the father’s daughter with Ms. B had to be rescheduled after the father demanded to be present, is concerning.

[117] The father’s behaviour was clearly on display in the courtroom during his cross-examination of the mother. He was very argumentative and, on more than one occasion, would not let the witness finish her statements. The mother remained calm and answered his questions in a child-focused manner.

[118] The paternal grandfather described the relationship between the parents as terrible due to their disagreements around parenting issues.

[119] Despite the communication challenges, the mother has encouraged a positive relationship between the child and his father as follows:

i. The mother appears to have been able to separate the father’s hostility towards her from the need to maintain a relationship between the child and the father.

ii. The mother has kept the father updated on the child’s specialist and medical appointments and has told the father of recommendations made by the child’s healthcare providers.

iii. The mother incorporated both maternal and paternal families in the child’s name.

iv. The mother facilitated parenting time in her home when the child was a newborn and allowed the father some private moments to bond with the baby in the home, with the mother not being in the room.

v. The mother agreed to have the father’s parenting time with the child occur when the father has his daughter at home (to ensure both children can spend time together).

vi. The mother has kept the father informed when the child is sick.

vii. The mother agreed to have a bris even though the mother remained in the hospital recovering after giving birth.

[120] The child continues to be in his mother’s primary care. He is doing well in his mother’s care.

[121] For the reasons above, the court finds that an order for joint decision-making responsibility is not in the child’s best interests.

[122] The court further finds that it is in the child’s best interests that the mother be awarded sole decision-making responsibility for the child.

[123] For the reasons above, the court finds that it is in the child’s best interests for the child’s primary residence to be awarded to the mother for the following reasons:

i. The child has always resided with his mother.

ii. The mother provides stability to the child.

iii. The mother continues to have a better understanding of the child’s physical and emotional needs.

iv. The mother has been the parent primarily responsible for attending to the medical, educational, and emotional needs of the child.

Part Five – Parenting time

5.1 Legal considerations

[124] The test for determining parenting time is what order is in the best interests of the child.

[125] 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.

[126] 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 time order.

[127] In Bressi v. Skinulis et al, 2021 ONSC 4874, Justice Andrea Himel wrote as follows:

[21] There is no presumption in favour of joint parenting and the term “maximal contact” is no longer found in the CLRA. The legislation states in that: “in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.”

[22] Clearly the idea of a presumption in favour of one type of parenting order is anathema to the court’s unrelenting focus on the child’s “best interests.” The most one can say is, all things being equal, the child deserves to have a meaningful and consistent relationship with both of their parents.

[128] In Barendregt v. Grebliunas, 2022 SCC 22, 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, 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”.

5.2 Analysis

[129] The father is currently having parenting time of one day per week (24-hour period). However, since the child is in daycare, he is only having overnight parenting time from Thursday after daycare (4:00 p.m.) until Friday at 9:00 a.m. when he drops off the child at daycare.

[130] There is no doubt that the father loves his son. The father was credible in his evidence regarding his positive interactions with the child and his positive interactions with his daughter, M.O.

[131] The following shows the father’s parenting strengths:

i. Other than the few occasions when the father has compared the child’s developmental milestones to his half-sister, M.O, the father appears to genuinely love his son.

ii. Ms. Harssar, the father’s friend, and the paternal grandfather confirmed that the father enjoys his parenting time with the child and there are no concerns. Both Ms. Harssar and the paternal grandfather were credible witnesses on the issue of the father’s interactions with the child and his interactions with his daughter.

iii. Other than issues pertaining to decision-making and communication, Ms. B did not identify any serious concerns regarding the father’s parenting time with his daughter, M.O.

iv. The father appears to genuinely want to ensure that his son is part of and participates in his Jewish heritage and customs.

v. The father appears to genuinely want his two children to spend time together.

vi. The father would like to ensure that the child is able to spend time with the paternal extended family, including the paternal grandparents who live in Ottawa.

vii. Ms. Burrows, OCL clinician, testified that when she observed the father with his daughter, M.O., the daughter appeared comfortable in her father’s care, and he made sure she was safe.

[132] The paternal grandfather was not reliable in his interpretation of the parenting challenges between the father and the mother. The paternal grandfather took the father’s side on every aspect, even expressing that it does not feel right that the child does not have the father’s last name as his last name. The grandfather did not see any wrongdoing with the way the father handled the child’s bris ceremony.

[133] However, the grandfather was credible in his evidence pertaining to the importance of the father’s Jewish heritage, the need for the child to have a positive relationship with his extended family, and the grandparents’ desire to spend time with their grandson, including when they visit Toronto.

[134] The grandfather testified that the bar mitzvah ceremony is important for a Jewish child and that he would want to see his grandson having a bar mitzvah. Further, the grandfather expressed that his family would want to have his grandson visit the paternal grandparents in Ottawa.

[135] It is important for the child to maintain and be part of his father’s Jewish heritage, customs, and culture. The father and the paternal grandfather stated that the child’s first cousin will be having his bar mitzvah in April 2023, and it is important for the child to attend. The court will make an order allowing the child to attend his cousin’s bar mitzvah from April 27, 2023, to May 1^st, 2023.

[136] The court does not agree with the schedule proposed by the father for an equal time-sharing arrangement.

[137] 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.

[138] Given the challenging relationship between the parents in this matter, an equal time-sharing arrangement is not in the child’s best interests. However, some increase of the father’s parenting time is the child’s best interests. The father’s parenting time will be increased from the current one day per week to an alternate weekend schedule (Friday after daycare until Sunday at 5:00 p.m.). The court will also allow the father one overnight during the week, in alternate weeks. The father testified that he has a flexible work schedule and that he can design his work schedule around his parenting schedules with both children. In a letter to the mother’s lawyer dated December 28, 2019, the father wrote that he is an independent contractor who sets his own hours and has the flexibility to change his work hours to suit his needs.

Part four - Police enforcement

[139] The mother seeks a police enforcement clause to enforce parenting orders made by this court.

[140] The father opposes the request.

4.1 - Legal considerations

[141] Section 36 of the Act provides as follows:

Order where child unlawfully withheld

36 (1) Where a court is satisfied upon application by a person in whose favour a parenting order or contact order has been made with respect to a child that there are reasonable and probable grounds for believing that any person is unlawfully withholding the child from the applicant, the court by order may authorize the applicant or someone on his or her behalf to apprehend the child for the purpose of giving effect to the rights of the applicant to decision-making responsibility, parenting time or contact, as the case may be. R.S.O. 1990, c. C.12, s. 36 (1); 2020, c. 25, Sched. 1, s. 12 (1).

Order to locate and take child

(2) Where a court is satisfied upon application that there are reasonable and probable grounds for believing,

(a) that any person is unlawfully withholding a child from a person entitled to decision-making responsibility, parenting time or contact with respect to the child;

(b) that a person who is prohibited by court order or separation agreement from removing a child from Ontario proposes to remove the child or have the child removed from Ontario; or

(c) that a person who is entitled to parenting time or contact with respect to a child proposes to remove the child or to have the child removed from Ontario and that the child is not likely to return,

the court by order may direct a police force, having jurisdiction in any area where it appears to the court that the child may be, to locate, apprehend and deliver the child to the person named in the order. R.S.O. 1990, c. C.12, s. 36 (2); 2020, c. 25, Sched. 1, s. 12 (2).

Application without notice

(3) An order may be made under subsection (2) upon an application without notice where the court is satisfied that it is necessary that action be taken without delay. R.S.O. 1990, c. C.12, s. 36 (3).

Duty to act

(4) The police force directed to act by an order under subsection (2) shall do all things reasonably able to be done to locate, apprehend and deliver the child in accordance with the order. R.S.O. 1990, c. C.12, s. 36 (4).

[142] Police enforcement ought to be granted rarely and only in extraordinary circumstances. It should only be granted in very serious cases where there is solid evidence that such interference by the police is necessary. See: Bouchard v. Sgovio, 2021 ONCA 709.

[143] It is an order of last resort to be made sparingly and in exceptional circumstances. It can frighten children and polarize a difficult situation. See Allen v. Grenier [1997] O.J. No. 1198 (General Div.).; Klinkhammer v. Dolan and Tulk 2009 ONCJ 630; F.(M.) v. M. (C.) (2009), 2009 NSFC 15, 72 R.F.L. (6^th) 226 (N.S. Fam. Ct.).

[144] A thorough review of case law on police enforcement is contained in the case of Patterson v. Powell 2014 ONSC 1419. The principles set out in Patterson are as follows:

• Section 36 of the Children's Law Reform Act is available to address a present and existing problem, not a future or potential problem. (Paras 14-15).
• Section 36 does not make police enforcement available "as a long-term, multiple-use, on-demand enforcement tool." (Para 16)
• Police enforcement of custody or access may give rise to a wide range of negative emotions and consequences in the child involved. (Paras 21-22)
• Police enforcement may be essential for immediate retrieval of a child from a dangerous or inappropriate situation, but for ongoing enforcement, parties must look to less destructive and more creative alternatives. (Paras 23-24)
• Police should be served with notice, if a party proposes a broad order under section 36(4) that they "do all things reasonably able to be done". (Para 30)
• Police enforcement should be used sparingly, in exceptional circumstances, and as a last resort, and then only when it is shown to be required in the best interests of the child, after considering the risk of trauma to the child. (Paras 44-62)
• Chronic non compliance with a custody or access order is "likely ... a problem that police can't fix anyway." (Para 74).

4.2 - Analysis

[145] In this case, there is no evidence that the father has breached any parenting orders relating to the child. The mother submits that, at one point, the father withheld his daughter, M.O., from her mother, Ms. B.

[146] There are no current police enforcement clauses between Ms. B and the father.

[147] Ms. B testified at this trial. She did not express the need for police enforcement in her current parenting arrangements with the father.

[148] The mother’s counsel argued that a police enforcement clause is necessary if the father attempts to withhold the child.

[149] The father described a police enforcement clause as an overkill.

[150] The court agrees with the father.

[151] A police enforcement clause will further escalate the conflict between the parents.

[152] This matter has been in court since February 26, 2020. A police enforcement clause was never pled by the mother in her application. When questioned by the court as to whether the father had been formally notified of this request, the mother’s counsel agreed that no formal notice of the request had been made. The father only became aware of the request after the mother served the father with her affidavit for her examination-in-chief for this trial in September 2022.

[153] The mother’s counsel argued that the procedural irregularity does not prejudice the father.

[154] The court disagrees with the mother’s position.

[155] The father is self-represented. He only became aware of the request after receiving the mother’s affidavit containing her evidence-in-chief. The mother is legally represented. For the past 2 ½ years that this matter has been before the court, the mother had ample opportunity to amend her pleadings to include a request for police enforcement.

[156] The court finds that it would be procedurally unfair to the self-represented father to grant the request. No reasonable explanation was offered by the mother for her failure to amend her pleadings in advance of the trial.

[157] Further, the court finds that it is not in the child’s best interests to have a police enforcement clause. Given the history of this family, such a clause will further escalate the conflict between the parents.

[158] Accordingly, the mother’s request for a police enforcement clause is dismissed.

Part five – Child’s name /name change

[159] The father seeks the following orders regarding the child’s legal name:

i. An order that the child’s last name be hyphenated to include both parents’ last names, to read B-O.

ii. An order allowing the father to add a middle name of his choice to the child’s legal name.

[160] The mother opposes the request.

5.1 – Legal considerations

[161] The Change of Name Act provides as follows:

Application to change child’s name

5 (1) Unless a court order or separation agreement prohibits the change, a person described in subsection (1.1) may apply to the Registrar General in accordance with section 6 to change,

(a) the child’s forename or surname or both; or

(b) the child’s single name, if the child has a single name. 2016, c. 5, Sched. 4, s. 4.

Same

(1.1) Subsection (1) applies to a person with lawful custody of,

(a) a child whose birth was registered in Ontario and who is ordinarily resident there; or

(b) a child who has been ordinarily resident in Ontario for at least one year immediately before the application is made. 2016, c. 5, Sched. 4, s. 4.

Consents required

(2) The application under subsection (1) requires the written consent of,

(a) any other person with lawful custody of the child;

(b) any person whose consent is necessary in accordance with a court order or separation agreement; and

(c) the child, if the child is twelve years of age or older. R.S.O. 1990, c. C.7, s. 5 (2).

[162] In Benko v. Torok, 2013 ONCJ 331, Justice S. O’Connell wrote the following regarding the jurisdiction of this court to make an order changing a child’s name:

[217] The Ontario Court of Justice does not have jurisdiction to make this order. There is no statutory authority to make an order compelling the Registrar General to change a child’s name under the Vital Statistics Act, R.S.O 1990, c. V.4, as amended, and this court does not have parens patriae jurisdiction. In all of the cases where this order has been made, the application was commenced in the Superior Court of Justice and the court has made the order changing a child’s name using its parens patriae jurisdiction. See Gallant v. Lewis, 2008 36912 (ON SC), [2008] O.J. No. 2913, 57 R.F.L. (6th) 345, 2008 CarswellOnt. 4384 (S.C.J.), Ryan v. Scott, 2011 ONSC 3277

[163] In Hermanson v. Kiarie, 2017 ONCJ 598, Justice S. B. Sherr provided the following legal considerations:

[17] Clause 28 (1) (b) of the Children’s Law Reform Act gives the Ontario Court of Justice statutory authority to determine any aspect of the incidents of the right to custody or access.

[18] In paragraph 24 of Zho v. Chen, [2000] O.J. No. 4520 (SCJ – Family Court), Justice Clifford Nelson found that the court could prohibit a party from changing a child’s name as an incident of custody. The test, he wrote, was whether such an order was in the child’s best interests.[3]

[19] The father is seeking this order because subsection 5 (1) of the Change of Name Act permits a custodial parent to apply to the Registrar General to change a child’s name, unless a court order or separation agreement prohibits the change. In the absence of such an order or agreement, the custodial parent is free to change a child’s name over the objection of the non-custodial parent. The father is seeking a court order that, if granted, would have the effect of preventing the mother from being able to bring a name change application under the Change of Name Act.

[20] Changing a child’s name is not a mere administrative act. See: Herniman v. Woltz, 1996 8087 (ON SC), [1996] O.J. No. 1083 (Ont. Gen. Div.). A child’s surname is important. In many ways, the surname speaks to who the person is, and is not simply a convenient means of identification. See: Hill v. Shimla, [1995] O.J. No. 3311 (Ontario Court of Justice (General Division – Family Court); Belisle v. Poole (1994), 1994 18211 (ON SC), 2 R.F.L. (4^th) 165 (Ont. Gen. Div.)

5.2 - Parties’ positions and narrative

[164] The child’s current legal names are ‘J.N.O.B’.

[165] The father’s evidence was that he was never allowed to name his son. The father testified that at 8 days old, at the bris ceremony, he gave the child a name of his choice, but on the child’s birth registration, the mother did not use the name that the father had given the child.

[166] The father testified that he made a promise to his grandfather on his deathbed that he would name his son after the grandfather. The father testified that the ‘J’ name on the child’s current name is not the grandfather’s actual first name.

[167] The mother testified that she waited a month following the child’s birth to register his birth to try to come to a compromise with the father regarding the child’s name. However, according to the mother, due to the father’s abusive, controlling and manipulative behaviour, she proceeded to name the child as she wished, but reflected the father’s family in the current names she gave to the child.

[168] The mother’s evidence was that the ‘J’ represents the paternal grandfather’s first name, the ‘N’ is the maternal grandfather’s name, the ‘O’ is the father’s last name, and the ‘B’ is the mother’s last name.

[169] After the child was born and had been named by the mother, the father continued to use the first name he had chosen when calling the child. His family also was using the name that he chose.

[170] According to the mother, this became very confusing for the child.

[171] On November 4^th, 2020, Justice Finlayson made an order requiring the father to call the child by his legal name. On May 5^th, 2021, Justice Katarynych made a further order requiring the father to use the child’s legal name.

[172] At this trial, when asked whether he agreed with any of the child’s current legal names, the father’s response was ‘none’.

5.3 - Analysis

[173] As per Justice O’Connell’s decision in Benko v. Torok, 2013 ONCJ 331, this court does not have jurisdiction to change the child’s legal name as requested by the father.

[174] In this case, the father is not seeking to prohibit the mother from changing the child’s name as an incident of decision-making responsibility, as was the case in Hermanson (supra). He is seeking an order to change the current last name to a specific last name.

[175] The court is not granting decision-making responsibility over the child to the father. The mother is being granted sole decision-making responsibility over the child.

[176] Accordingly, given that this court lacks jurisdiction to make the requested order, the father’s request to change the child’s name is dismissed.

[177] However, an order will be made requiring the mother to deliver certified copies of the child’s government-issued identification documents to the father. The father told the court that she has refused to provide copies of any of the child’s identification documents, telling him to obtain the documents directly from the relevant government offices.

[178] This court finds the mother’s position in this regard to be unreasonable.

Part Six – Child support

6.1 – Narratives and the parties’ positions

[179] In her original application filed on February 26^th, 2022, the mother sought to have the father’s annual income imputed to at least $40,000.00 for purposes of support calculation.

[180] At trial, the mother sought an order that the father pay child support based on an imputed annual income of $55,000.00. The applicable table amount for one child in Ontario would be $507.00 per month. According to the mother, the father should be working full time as a massage practitioner or orthotherapist.

[181] The mother seeks to have a retroactive adjustment to the father’s child support payments, commencing February 1^st, 2020 (which is three weeks prior to the date of the application).

[182] The father’s position is that:

i. He is unable to work full time as a massage practitioner due to a shoulder injury.

ii. He should pay child support based on his annual income.

iii. His annual income averages $30,000.00 as per his notices of assessment for the past 10 years.

iv. His current annual income is $23,000.00.

v. He should not be made to afford what the mother chooses he should.

vi. He does not agree to having his income imputed to the level requested by the mother.

[183] In support of her request, the mother provided a wage survey from jobbank.gc.ca showing prevailing wages for an orthotherapist (and massage therapist) in the Toronto region as follows:[^1]

Low	Median	High
20	28.85	60

[184] The mother also provided a wage survey from Indeed.com showing a base salary for a massage therapist in the Toronto region to be $59.56 per hour and for ‘similar professions’ to be $28.73 per hour. [^2]

[185] Pursuant to the temporary order of the Honourable Justice Finlayson dated November 4, 2020, the father is paying child support to the mother in the amount of $256.00 per month, commencing March 1^st, 2020. The father’s annual income was imputed at $30,000.00 for purposes of child support calculation.

[186] The father’s notices of assessment show the following incomes:

Year	Line 150 amount
2016	$9,044
2017	$21,104
2018	$11,219
2019	$13,896
2020	$24,597
2021	$22,517

[187] The father provided the following testimony regarding his income and employment situation:

i. He has the following sources of income (with a total annual income of $23,000.00):

Source	Annual income	Details
Massage (orthotherapist)	$8,000.00	(1) Primarily, he works as an orthotherapist, working independently. Some refer to him as a massage therapist, but he is not a registered massage therapist. He is a massage practitioner. His clients pay him online. (2) He works part-time with Bodhi Tree oriental health clinic (since March 2022). [A website printout provided by the mother shows the father’s job description on the website as “an orthotherapist...certified to perform Swedish massage, deep tissue massage, myotensive techniques, myofascial release technique, craniosacral therapy, kinesitherapy, articular pathologies and pregnancy massage. He is also certified as an acupressurist and as a Hatha yoga instructor”
Teaching massage	$2,000	He created a program called ‘The Esthetic Massage Program”. His clients are aestheticians. The program sells for $500.00. The program comprises five 4-hour modules. The goal of the program is to teach aestheticians how to improve massage in their aesthetic services.
Family business (Lois-n-Frima)	$13,000.00	His family owns an ice cream business in Ottawa. In 1987, they won the best ice cream in Canada. They have several locations in Ottawa. He has managed a couple of their locations. His parents have invited him to Ottawa for full-time responsibilities (as a high-level manager) but he is unable to take the position since his children are in Toronto. Currently, he is paid $250.00 (net) per week. If he moved to Ottawa, he would earn $300 to $400 per week. He has been asked by his family to expand the business in Toronto.

[188] Around November 2018, the father was involved in an accident and suffered a shoulder dislocation. He had surgery. As a result, his ability to work as an orthotherapist has been limited. He can only do one or two massages every week.

[189] The mother argues that the financial information provided by the father is not transparent, is contradictory, and provides confusing details about his employment and sources of income. The mother cites the details below.

[190] The father was served with a request for information on February 16^th, 2021. In the request, the father was asked to provide a report from his medical doctor explaining the nature of his injuries and surgery, as well as details of his diagnosis, prognosis, and treatment plan, and how his condition or diagnosis affects his employment as a massage therapist.

[191] He did not provide the requested medical information.

[192] During the trial, the father conceded that he had failed to provide any medical information providing details of his injuries and how the injury affects his ability to work on a full-time basis.

[193] The father claims that due to his current parenting arrangements with Ms. B (his daughter’s mother), he is unable to work on a full-time basis as he must provide care for his daughter. He has a 2-2-3 parenting schedule with Ms. B.

[194] In her evidence, the mother states that the father’s daughter, M.O., is now in full-time junior kindergarten. Accordingly, the father has the availability to work.

[195] On June 3, 2020, the father was ordered by Justice Finlayson to provide the following disclosure forthwith:

a. Bank statements for all personal and business accounts in his name or the name of his company or held jointly from 2017 to present.

b. Credit card statements for all personal and business credit cards that are in his name or in the name of his company or held jointly from 2017 to present.

c. Line of credit statements for all personal and business accounts that are in his name or in the name of his company or held jointly from 2017 to present.

d. An Equifax report regarding his credit.

e. All loan applications made between 2019 and 2020.

f. A resume including detailed work and education history.

g. Copy of his lease agreement.

h. All business accounting documents related to “Brahma Massage” including invoices, receipts, general ledger, business account statements, and incorporation documents.

[196] On November 4^th, 2020, the father was ordered by Justice Finlayson to file an updated Affidavit setting out proof of all business income in 2019 and 2020 and his business expenses. According to the mother, the father only provided some information on a spreadsheet and no supporting documentation was provided.

[197] According to the mother’s evidence, the following disclosure remains outstanding:

i. Bank statements for the Simplii Financial for September 2017, March 2018, April 30, 2020, to April 30, 2021, and October 30, 2021, to present.

ii. Credit card statements for the Capital One Gold Mastercard for January 2020, July 2020 to present.

iii. Bank statements for TD business account from May 2020 to present.

iv. Proof of all business income in 2019, 2020, 2021, and 2022 to date, and business expenses for those years.

v. A report from the father’s medical doctor explaining the nature of his injuries and surgery, as well as details of his diagnosis, prognosis, and treatment plan, how his condition/diagnosis prohibits or impacts him from working as a massage therapist.

vi. All business accounting documents related to Esthetic Massage Program including invoices, receipts, general ledger, business account statements, credit statements, loan documents, and incorporation documents.

vii. Copies of loan applications made in 2021.

[198] The father testified that he provided all materials that the mother requested.

6.1 - Legal considerations for imputing income

[199] Section 19 provides that the court may impute to a spouse “such amount of income … as it considers appropriate” and provides a non-exhaustive list of such circumstances. The relevant portions of s. 19 read as follows:

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

(a) the 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 spouse;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

[200] 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. Clause 19(1)(a) of the guidelines is perceived as being a test of reasonableness. See Drygala v. Pauli 2002 41868 (ON CA), [2002] O.J. No. 3731(Ont. CA).

[201] 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:

1. Is the party intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by virtue of reasonable educational needs?
3. If not, what income is appropriately imputed?

[202] A court must also consider whether the under-employment is required by the needs of a child or by the health needs of the spouse. See: Lavie v. Lavie, 2018 ONCA 10, at para. 28.

[203] 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.).

[204] 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. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.

[205] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, 2003 3433 (Ont. C.A.), at paragraph 23. It must be reasoned, thoughtful and highly practical: See: Hagner v. Hawkins 2005 43294 (ON SC), (Ont. S.C.) at paragraph 19. 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 22560 (ON SC), [2000] O.J. No. 453, (Ont. Fam. Ct.).

[206] The onus is on the payor parent to justify the decision to reduce their income. The payor cannot just present the income they are earning. The payor’s previous income is a rational basis on which to impute income, as it is the amount that the payor would have continued to earn but for their decision to leave their job: Olah v. Olah 2000 22590 (ON SC), (2000), 7 R.F.L. (5th) 173 (Ont. S.C.); Weir v. Therrien, 2001 28136 (ON SC), [2001] O.J. No. 2612, supra; Vitagliano v. Di Stavolo 2001 28202 (ON SC), (2001), 17 R.F.L. (5th) 194 (Ont.S.C.); Zagar v. Zagar, 2006 ONCJ 296, 2006 ONCJ 296; Laing v. Mahmoud, 2011 ONSC 4047.

[207] The third question in Drygala v. Pauli, supra, is: “If there is no reasonable excuse for the payor’s under-employment, what income should properly be imputed in the circumstances?” 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, 2006 26573 (ON C.A.).

6.3 - Analysis

Is the father intentionally unemployed or under-employed?

[208] This court finds that the father was not credible regarding his financial information.

[209] Assessing the father’s income is very challenging due to his non-compliance with previous disclosure orders. His position is that the court should use his stated income of $23,000.00 without going through all the evidence.

[210] The mother does not dispute that the father suffered an injury. However, no medical information was provided by the father to confirm the impact of the injury on his ability to do his work as an orthotherapist.

[211] The father testified that he is also unable to work full-time since his other daughter, M.O., is on a 2-2-3 parenting schedule. The mother’s position is that M.O. is now in full time kindergarten, leaving the father with ample opportunity to work.

[212] During cross-examination, the father was asked if he would consider working a minimum wage job to support his family. The father scoffed at the question, stating that he is already ‘working at Tim Hortons’ due to the current temporary order which imputed his annual income at the minimum wage amount.

[213] What is more alarming about this case is the father’s failure to provide full and frank financial disclosure, particularly court-ordered financial disclosure. On the financial issues, the court prefers the mother’s evidence to the father’s evidence. The father has not complied with court orders requiring him to provide specific items of disclosure.

[214] It is very challenging to determine from the father’s evidence how much he is earning from Bodhi Tree health clinic or his private massage/orthotherapist business. The father’s evidence of his earnings from his own private massage business is not supported by documentary evidence.

[215] Subsections 21(1) and 21(2) of the Guidelines are very clear on what is to be provided by a self-employed payor, that is:

21(1)(d) where the parent or spouse is self-employed, for the three most recent taxation years,

(i) the financial statements of the parent’s or spouse’s business or professional practice, other than a partnership, and

(ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the parent or spouse does not deal at arm’s length.

[216] 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 46927 (ON SC), [2008] O.J. No. 3616, (Ont. S.C.); Maimone v. Maimone, 2009 25981 (ON SC), [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.

[217] Given the father’s failure to provide full financial disclosure and his failure to assist the court with materials that would help to understand his earnings, this court is hereby drawing an adverse inference against him.

[218] 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.

[219] In Roberts v. Roberts 2015 ONCA 450, the Ontario Court of Appeal stated:

[11] The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing. [12] Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.[13] Financial disclosure is automatic. It should not require court orders – let alone three - to obtain production.

[220] Accordingly, this court finds that the father is intentionally under-employed.

Is there a reasonable excuse for the father’s under-employment?

[221] The father’s reasons for earning less income are that:

i. He suffered a shoulder injury, impacting his work as an orthotherapist (or massage practitioner).

ii. He has a 2-2-3 parenting schedule with Ms. B.

[222] The payor must prove that any medical excuse for being underemployed is reasonable. See Rilli v. Rilli, 2006 34451 (ON SC), [2006] O.J. No. 4142 (SCJ.). Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his/her reasonable health needs justify his/her decision not to work. See: Cook v. Burton 2005 1063 (ON SC), [2005] O.J. No. 190 (SCJ) and Stoangi v. Petersen 2006 24124 (ON SC), [2006] O.J. No. 2902 (SCJ).

[223] In Davidson v. Patten, 2021 ONCJ 437, Justice Carole Curtis set out that a party resisting a claim for imputation of their income based on medical reasons should provide a medical report setting out at least the following information:

i. Diagnosis;

ii. Prognosis;

iii. Treatment plan (is there a treatment plan? And what is it?);

iv. Compliance with the treatment plan; and,

v. Specific and detailed information connecting the medical condition to the ability to work (e.g, this person cannot work at the pre-injury job; this person cannot work for three months; this person cannot work at physical labour; this person cannot return to work ever).

[224] Support payors must use reasonable efforts to address whatever medical limitations they may have to earn income. This means following up on medical recommendations to address these limitations. See: Cole v. Freiwald, [2011] O.J. No. 3654, per Justice Marvin A. Zuker, paragraphs 140 and 141.

[225] The father has failed to comply with requests for disclosure, including medical disclosure.

[226] The father described it as ridiculous for the mother’s counsel to claim that they are unable to ascertain how the father can pay his bills based on the financial disclosure provided.

[227] The father blames the mother for “aggressively pursuing child support” and states that he is unable to keep up with the mother’s spending and spending habits.

[228] The court finds that there is no reasonable excuse for the father’s under-employment.

What income should properly be imputed in the circumstances?

[229] In the absence of reliable evidence from a payor on which the court can rely, the logical alternative must be the basis upon which the cost of his or her lifestyle is estimated [per Reyes v. Rollo, 2001 28260, para. 62]

[230] In Bak v. Dobell 2007 ONCA 304, the court stated;

41. A payor's lifestyle often will be relevant to whether a court may impute income under s. 19(1) of the Guidelines. For example, it may be apparent from lifestyle that a payor is receiving undeclared income because he or she has historically worked, lives comfortably with the usual trappings, and yet declares minimal income for tax or child support purposes. In such a case, the recipient who calls evidence of the payor's lifestyle will ask the court to draw the reasonable inference that the payor must have a greater income than he or she has disclosed.

[231] An assessment of the father’s lifestyle would require a review of the father’s financial statements, including his expenses. However, it is important to briefly point out that both the father and the paternal grandfather testified that the father was offered a managerial position in the family business in Ottawa. Lower-level managerial positions earn between $15.00 an hour and $20.00 an hour. He refused to take the position given that he wants to be closer to his two children in Toronto. The court accepts his explanation as reasonable. He is on an active 2-2-3 parenting schedule with Ms. B.

[232] The father filed two Form 13 Financial statements. The first financial statement is dated July 29^th, 2020. The second financial statement is dated August 1^st, 2022, but is unsworn. When the father testified, he confirmed the contents of the unsworn financial statement to be true and correct.

[233] During his testimony, he told the court that his financial statement dated July 29, 2020, was inaccurate and should not be admitted into evidence. He stated that he did not agree with the contents, but his lawyer at the time made him sign the document. He asked the court not to admit the document as part of the trial evidence. The mother’s counsel argued that this is a document that the father, while legally represented, served, and filed with the court. The mother sought to have the financial statement dated July 29, 2022, be admitted.

[234] The court does not accept the father’s position. The July 29, 2020, financial statement has been on file for more than two years. There is no record that he tried to correct the contents of the document. Further, when he filed the financial statement, he was legally represented. The document itself was sworn by the father before his lawyer. This court will admit the July 29, 2020, financial statement into evidence.

[235] Further, the father’s approach regarding his financial statements adds to the confusion around his financials. He tried to dissociate himself from the July 29, 2020, financial statement. Then he went on to serve an unsworn financial statement dated August 1, 2022, on the mother (in advance of the trial).

[236] A comparison of the two financial statements shows the following entries:

Item	July 29, 2020 financial statement	August 1, 2022, unsworn financial statement
Employment	Receiving CERB and OW	• Employed by Lois ‘n’ Frima ice cream and fun foods • Self-employed – Esthetic massage program
Monthly income	Total - $2,875.00 ($875 – social benefits and $2,000.00 CERB)	Total - $2,308.47 $1,080 employment income and $700.00 from self-employment
Total annual income	$34,500.00	$27,701
Total annual expenses	$32,466.60	$32,619.36
Current assets	$4,333.72	$3,541.90
Debts	$24,200.00	$50,269.95 [$32,000 is owed to his family members]

[237] The father’s entries on current employment (per the August 1^st, 2022, financial statement) do not mention his work with Bodhi Tree oriental health clinic.

[238] On September 6^th, 2017, the father signed a residential tenancy agreement. As per the agreement, he pays monthly rent in the amount of $1,800.00 per month. He continues to pay this rent every month, which is now $1,821.60 per month. The net annual amount paid by the father on his rent is $21,859.20.

[239] The father has been able to maintain his annual rent payments in the amount of $21,859.20. Further, he has maintained almost the same amount of annual expenses. In July 2020, the total annual expenses were at $32,466.60, and in August 2022, the amount was at $32,619.36. However, his debts went up from $24,200.00 to $50,269.95. On his current debts, $32,000.00 is owed to his family members.

[240] The paternal grandfather testified that the father was owing approximately $27,000.00 to the grandparents. However, no records were provided in support of the debt.

[241] The court rejects the father’s debts as no evidence was provided in support of the debts.

[242] The only logical conclusion from the above analysis is that the father is receiving income that is not being reported. Further, the court finds that the father’s notices of assessment do not provide an accurate account of the father’s earnings. This has been exacerbated by a lack of financial disclosure.

[243] In his closing submissions, the father stated that he may not be making a lot of money, but he makes enough as he has been able to live in the same home for the past 5 years, ‘making it work every single month’ and he will continue to do so.

[244] The father was neither candid nor credible in his evidence on his financials. Therefore, his income for support purposes will be calculated as follows:

Amount to be included	Source
$8,000.00	Massage practitioner/orthotherapist
$2,000.00	Teaching (Esthetic Massage Program)
$13,000.00 (to be grossed up)	A net amount received from his family’s ice cream business
$9,619 (to be grossed up)	A net amount being imputed to the father by the court representing the difference between the father’s stated income of $23,000.00 and the father’s annual expenses of $32,619.36.

[245] A software analysis, which will be attached to this decision, provides an annual Guidelines income of $39,149 for support calculation.

[246] The court will impute the father’s annual income at $39,149, for the years 2020, 2021, and 2022. Table amount for one child is $349.00 per month.

Part Seven – Start date for support

7.1 Legal considerations[^3]

[247] The mother seeks an order that child support be ordered retroactive to February 1^st, 2020 (three weeks after the child’s birth). The current temporary child support is effective March 1^st, 2020. The mother’s application was filed on February 26, 2020.

[248] 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;

[249] Any support claimed after an application is issued is prospective support, not retroactive support. See: Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 331 (Ont. C.A.).

[250] 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.

[251] 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.

[252] 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 will guide the exercise of that discretion, as described in Michel v. Graydon, 2020 SCC 24. 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.

7.2 – Positions of the parties and analysis

[253] On December 3^rd, 2019, six weeks prior to the birth of the child, the mother sent the father a message notifying him that once the child was born, she would require monthly child support in the amount of $400.00 per month. He reacted with hostility, accusing her of not seeing the value of ‘moving forward together’. He told her that she was in for a rude and expensive awakening (implying the court process).

[254] The court finds that the date the child was born is the presumptive date of retroactivity.

[255] The court must next examine if it should deviate from this presumptive start date, and if so, when child support should start[^4].

[256] The mother did not delay in bringing her child support claim. Five weeks after the birth of the child (by c-section), she filed her application seeking child support. She acted promptly in bringing her claim before the court.

[257] Before the child support order of November 4, 2020, the father made three voluntary child support payments in the amount of $195.00 per month for September, October, and November 2020. These payments started seven months after the mother had commenced her court application. The court finds that the father engaged in blameworthy conduct by not making child support payments from the date the child was born until he commenced his voluntary payments in September 2020.

[258] No evidence was led that the circumstances of the child were disadvantaged due to the father’s failure to pay support.

[259] There was no evidence led that a retroactive support order would cause the father hardship that cannot be addressed with a payment order.

[260] The mother is seeking a start date of February 1^st, 2020. For the reasons above, the mother’s request is granted.

Part Eight – Section 7 expenses

8.1 - Legal considerations

[261] The Child Support Guidelines provides as follows:

Special or extraordinary expenses

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

(a) child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the parent or spouse who has the majority of parenting time;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

[262] In Titova v. Titov, 2012 ONCA 864, the court wrote:

[23] In awarding s. 7 special and extraordinary expenses, the trial judge calculates each party’s income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines, determines whether the claimed expenses are necessary “in relation to the child’s best interests” and are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.” If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are “extraordinary”. Finally, the court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits.

8.2 - Positions of the parties

[263] The child is currently enrolled in daycare. The mother is solely paying for the daycare amount at a subsidized daily rate of $51.57.

[264] The father’s position is that he should not be required to contribute towards the daycare amount or section 7 expenses. His argument is that the current subsidy was calculated using the mother’s income, which is higher than the father’s income. He argues that the child should reside with him primarily such that the daycare subsidy can be calculated using his income, which is lower than the mother’s income.

[265] The mother argues that the father’s request is not in the child’s best interests.

[266] The mother is not seeking retroactive contribution on the section 7 expense. She is seeking the father’s contribution to commence on November 1^st, 2022.

8.3 - Analysis

Is the expense fall within the listed special or extraordinary expenses?

[267] The mother works with Canada Border Services Agency as a border services officer. She works full-time.

[268] The childcare expense claimed by the mother is incurred because of the mother’s full-time employment.

[269] The expense therefore falls under subsection section 7(1)(a) of the Guidelines.

Is the expense necessary in relation to the child’s best interests?

[270] The child has some speech challenges which have been identified. A daycare environment allows the child to interact with other children of his age.

[271] The child is already enrolled in daycare and is enjoying his time in daycare. No concerns have been raised regarding his attendance in daycare.

[272] Accordingly, given that his primary caregiver, the mother, is working full time, the court finds that the expense is necessary in relation to the child’s best interests.

[273] The father made an alternative argument that he could reside with the child full time during weekdays and save on daycare expense.

[274] The court finds the father’s position to be unreasonable. Firstly, the mother took steps to reduce the daycare amount by applying for a subsidy. Further, the father has not been forthcoming regarding financial disclosure. The father has refused to provide any contribution whatsoever towards the child’s daycare.

Is the expense reasonable in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation?

[275] The court is imputing the father’s annual income at $39,149.00 for purposes of support calculation.

[276] The mother’s income per CRA notices of assessment is as follows:

Year	Source	Line 150 amount
2016	employment	$83,009
2017	employment	$79,686
2018	employment	$116,890
2019	employment	$92,965
2020	employment	$79,254
2021	employment	$87,791

[277] The father made the following argument in his closing submissions:

.. (the mother) misrepresented to the Toronto Daycare subsidies, claiming to be a single Mother with a single salary, which provided her with a subsidy that she pays only $57 per day. She took advantage of the subsidy and then used this Court to try and recover more funds that she is not entitled to.

When (the mother) applied for the subsidy, she did not claim my $30,000.00 imputation Order by this Court, when the subsidy application clearly states that both parents must submit their incomes. ..

[278] The father’s argument is rather unfortunate. He refuses to contribute towards the child’s daycare expenses. Then he blames the mother for not having included his income in the subsidy application. The $30,000 he mentions in his submissions is not even his actual income as the amount was imputed to him. His actual income remains unknown.

[279] The court finds that the father’s position is unreasonable.

[280] Given the cost of the daycare expense and the combined income of the parents, the court finds the expense to be reasonable.

Are there any subsidies, benefits or income tax deductions or credits relating to the expense to be taken into account?

[281] The cost of daycare provided above is after applying a subsidy.

[282] The court finds that both parents should contribute to the child’s daycare expense, in proportion to their incomes.

[283] The court will use an annual income of $86,670.00 for the mother, representing the mother’s annual income in the last three years.

[284] A software analysis, which will be attached to this decision, shows that the father’s contribution is 31.1% of the total cost and the mother’s contribution is 68.9%. After applying the relevant tax deductions, the father’s monthly contribution is $212.00.

[285] Commencing November 1^st, 2022, the father shall contribute $212.00 per month towards the child’s childcare expense.

Part Nine – Leave to bring motion to change

[286] The mother seeks an order requiring the father to first file a Form 14B motion seeking leave prior to filing a motion to change parenting orders made by this court.

[287] The mother’s counsel submitted that the mother is concerned that the father will continue litigating this matter if no restrictions are put in place.

[288] A court can order no further proceedings without prior leave without first making a finding of vexatious litigant. See: Kerton v. Kerton, [1997] O.J. No. 3932 (Ont. Gen. Div.); Toronto Catholic Children’s Aid Society v. D.G., 2020 ONSC 4311.

[289] The court can make an order that no further proceedings be brought until costs are paid in full. See: Opach v. Lesnik (2006) 2006 ONCJ 312, 30 RFL (6^th) 459 (OCJ). Gordon v. Starr (2007) 2007 35527 (ON SC), 42 RFL (6^th)366 Ont.

[290] In Premi v. Khodeir, 2008 ONCA 313 at para. 2, the Court of Appeal stressed that depriving a litigant of the ordinary right to go to court is a serious restriction of a basic right. An order made under r. 14(21) of the Family Law Rules thus requires careful consideration.

[291] In this case, the mother did not seek this claim in her pleadings. The mother first sought this request at trial.

[292] Further, no evidentiary basis was provided by the mother in support of this request. No evidence was provided that the father has not complied with any orders for costs. This is a proceeding where the father is responding to the mother’s application.

[293] The court finds that there is no justification to deprive the father of his right to come to court if there is a material change in circumstances that would justify a review of the parenting orders by way of a motion to change.

[294] The mother’s request is therefore dismissed.

Part Ten – Conclusion

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

a. The child shall have his primary residence with the mother.

b. The mother shall have sole decision-making responsibility for the child.

c. The parties shall immediately notify each other if the 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.

d. The parties shall have the right to request and receive information regarding the child’s health, education, and general welfare directly from third-party sources, including but not limited to all health care providers and teachers. If required, the mother shall execute an authorization allowing the father to obtain information from third party sources.

e. The mother may obtain or renew government documentation for the child, including passport and renewals of passport, without the father’s consent.

f. The mother may travel with the child outside of Canada, for vacation purposes, without the father’s consent.

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

h. Within 14 days of receiving this order, the mother shall deliver to the father certified copies of the child’s birth certificate, health card and passport.

i. Except in case of an emergency, the parties shall communicate parenting issues through Our Family Wizard application.

j. The father shall have parenting time with the child on the following terms and conditions:

(a) Starting November 18^th, 2022, alternate weekends from Friday after daycare until Sunday at 5:00 p.m. These weekends will extend until Monday at 5:00 p.m., if the weekend falls where the Monday is a statutory holiday. The parties may, in writing, agree to change the commencement date of this weekend visit to allow the child’s parenting time to coincide with the father’s parenting time with his daughter.

(b) When the child commences school, the alternate weekends under sub-paragraph (a) above shall be extended to Monday at 9:00 a.m., drop off at school. If the Monday is a statutory holiday, the visit shall be extended until Tuesday 9:00 a.m., with drop off at school.

(c) Alternate Thursdays, with pick up after daycare (or school) and drop off on Friday morning at daycare (or school).

(d) The Father shall be responsible for all pick-up and drop off unless otherwise agreed to by the parties in writing.

(e) The child shall be in the care of the father from April 27, 2023, until May 1, 2023. During this period, the father may attend the scheduled bar-mitzvah for the child’s first cousin in Ottawa.

(f) The following holiday schedule shall take priority over the regular schedule:

Father’s day and mother’s day starting in 2023

(i) If the child is not otherwise with the father on the Father’s Day weekend, the child shall stay with him from Saturday at 7 p.m. until daycare/school starts on Monday morning, or at 9 a.m.

(ii) If the child is not otherwise with the mother on the Mother’s Day weekend, the child shall stay with her starting on Saturday at 7 p.m. prior to Mother’s Day until the father exercises his parenting time per the regular schedule.

Jewish holidays

(iii) The child shall be with the father for the following Jewish holidays each year:

a. Rosh Hashanah

b. Yom Kippur

c. First day of Passover

d. The first and last day of Hannukah/Chanukah

Easter and Christmas

(iv) The child shall be with the mother on Christmas Eve and Christmas day.

(v) The child shall be with the mother on Good Friday until return to daycare or school.

Summer break

(i) The father’s regular parenting schedule shall be suspended in the months of July and August each year. The child shall spend 10 consecutive days with the father in the month of July and 10 consecutive days in the month of August.

(ii) In even-numbered years, the father will choose these 10 consecutive days for each month. In odd-numbered years, the mother will choose these 10 consecutive days for the father’s parenting time for each month.

Thanksgiving

(iii) The child shall be with the mother for Thanksgiving dinner.

[296] A final child support order to go as follows:

i. Based on an imputed annual income of $39,149.00, the father shall pay the mother child support of $349.00 each month starting on February 1, 2020. This is the Guidelines table amount for one child.

ii. In addition to the monthly child support above, the father shall pay the mother $212.00 per month representing the father’s proportionate share towards the child’s childcare expenses.

iii. The father may pay arrears created by this order at the rate of $100.00 each month commencing on December 1^st, 2022. However, if the father is more than 30 days late in making any future ongoing support or arrears payment, then the full amount of arrears then owing shall immediately become due and payable.

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

v. The Family Responsibility Office is requested to adjust its records in accordance with this order.

vi. For as long as support is to be paid, the father and the mother, must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with section 24.1 of the Child Support Guidelines.

vii. A support deduction order shall issue.

[297] The mother’s request for police enforcement is dismissed.

[298] The mother’s request to have the father obtain leave before bringing a motion to change is dismissed.

[299] The father’s request to change the child’s legal name is dismissed.

[300] The final orders above shall replace all other court orders in this case.

[301] All other claims set out in the parties’ draft orders are dismissed.

[302] If either party seeks costs, they shall serve and file written submissions by November 21, 2022. The other party will then have until December 5, 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.

[303] The mother’s counsel shall take out this order.

Released: November 7, 2022

Signed: Justice Wiriranai Kapurura

[^1]: Recently in Lewis v. Willis, 2022 ONCJ 421, Justice S.B. Sherr found that the evidence from the Government of Canada Job Bank website falls within the public records hearsay exception and is presumptively admissible. This common law hearsay exception applies to publications from all levels of government

[^2]: In Lewis v. Willis (supra), Justice S.B. Sherr, ruling on the admissibility of non-government wage surveys, held that threshold reliability was established and the surveys were admissible.

[^3]: See M.J.L. v. C.L.F., 2022 ONCJ 243 (Justice S.B. Sherr) – legal considerations summarized under paras 130 - 136

[^4]: M.J.L. v. C.L.F., 2022 ONCJ 243 para 138