Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022 11 21 COURT FILE No.: Toronto D40753-20

BETWEEN:

FRITZIE BALIKIG Applicant

— AND —

CARL HAYDEN Respondent

Before: Justice D. Szandtner

Heard on: October 17, 18 and 19, 2022 Reasons for Judgment released on: November 21, 2022

Counsel: Vilma Radfar, counsel for the applicant Carl Hayden, on his own behalf

SZANDTNER J.:

Part One – Introduction

[1] This was a trial about the parenting and child support arrangements for the parties’ five year old daughter Ashleigh (the child). The child presently lives primarily with the applicant Ms. Balikig (the mother) and spends alternate weekends and overnight on Wednesdays with the respondent Mr. Hayden (the father).

[2] The mother seeks final orders for primary residence and sole decision-making authority for the child. She seeks a specified parenting time schedule for the father, including alternate weekends, a mid-week overnight visit and holiday parenting time. She also seeks government orders for incidents of parenting, including the ability to obtain government documentation for the child and to travel with the child outside of Canada without the father’s consent.

[3] The mother seeks to impute the father’s annual income at $128,590.00 for support purposes. She seeks child support retroactive to the date of separation (March 1, 2020). She also asks that the father pay 67.5 % of the child’s special and extraordinary expenses (section 7 expenses) and she will pay 32.5 % pursuant to Child Support Guidelines (the guidelines.)

[4] The father seeks a final order for primary residence with him and sole decision-making responsibility for the child following consultation with the mother. The exception to this order is that the mother will have sole decision-making responsibility with respect to the child’s religion.

[5] The father seeks a final order that parenting time be split between the parents. He seeks an order that it initially would provide for 4 or 5 days a week with him and the remaining time with the mother to satisfy the make up time he believes that he is owed. He seeks to provide the child with flexibility to vary the schedule as she chooses. He seeks an order that the mother not have overnight parenting time until she completes a parenting program and an anger management program.

[6] The father asks that there be no order for ongoing child support due to the equal parenting time schedule. He also takes the position that child support has been fully paid to date on a voluntary basis and that there are no arrears owing. The father seeks an order that he be responsible for 100% of s. 7 expenses for the child.

[7] The father seeks a final order dispensing with the need for consent of the mother for his travel with the child outside of the GTA or Canada. His travel with the child outside of the country would require 14 days notice and a travel itinerary with make up time to be agreed upon. The father seeks an order that the mother cannot travel outside of Canada with the child until the child is 10 years of age.

[8] The parties each filed affidavits and financial statements as their direct evidence. They both provided oral evidence and were cross-examined. The mother also filed an affidavit from her older daughter Jannen Balikig who was cross-examined by the father. The father called Catholic Children’s Aid Society worker Stephanie Amaral who was cross-examined by the mother’s counsel.

[9] The issues for this court to determine are:

(a) What parenting orders regarding primary residence, decision-making responsibility, parenting time, travel and other incidents of parenting are in the child’s best interests? (b) When should the child support order start? (c) How much child support, if any, should be paid? What contributions should be made to section 7 expenses? (d) If the court finds that support arrears are owing, how should they be paid?

Part Two – Background Facts

[10] The mother is 50 years old and was born in the Philippines. The father is 60 years old and was born in Canada.

[11] The parties met in October 2013 in Toronto and started living together in November of 2013. They never married. They separated on March 1, 2020.

[12] The parties had one child together, Ashleigh. She was born on […], 2017 and is five years of age.

[13] The father has an adult son Aaron who resides in his home. The mother has three adult children Zarah, Chrystle and Jannen who live independently.

[14] The father operates a company cleaning aquariums and breeding fish and selling them online. He is self-employed and is the sole owner of Carl’s Aquarium Servicing.

[15] The mother is employed by the City of Toronto as a personal support worker for seniors. She works part-time. She recently retrained for employment as a medical office administrator. She graduated from the retraining course in August of 2022.

[16] The mother issued the within Application on October 22, 2020 seeking primary residence, sole decision-making, child support and travel/document discretion.

[17] The father filed an Answer/Claim on January 18, 2021 seeking joint decision-making and shared parenting time and a right to information about the child. His position at trial has changed to an order for sole decision-making as set out above.

[18] On May 11, 2021, Justice Sherr heard a motion brought by the mother for temporary parenting orders regarding the child. Justice Sherr made a temporary order that the mother would have sole decision-making responsibility for the child. The mother would consult with the father before making any non-emergency major decisions for the child. The child’s primary residence would be with the mother. Father’s parenting time was set out as alternate weekends, and every Wednesday from 3 pm to 7 pm. The father was to transport the child for the parenting time exchanges. The father was not to remove the child from the GTA without the prior written consent of the mother or prior court order. The father was not to consume alcohol or smoke in the presence of the child or smoke indoors when he is exercising his parenting time. Further, the father was to follow any medical direction given to him by the mother for the child. He was to follow the child’s sleep routines as set out by the mother and make best efforts to not work during his parenting time and was not to take the child to work.

[19] On September 21, 2021, on consent, Justice Sherr made a temporary without prejudice order varying the father’s parenting time as follows:

(a) Alternating weekends, commencing Friday October 1, 2021 from Friday after school, with pick up from school, until Monday morning, with drop off at school. (b) Every Wednesday after school, commencing Wednesday September 22, 2021, with pick up from school, until Thursday morning, with drop off at school. (c) Virtual and/or telephone parenting time with the child during the weeks the Applicant, Fritzie Balikig has weekend parenting time on Friday at 6:00 pm and the following Monday at 6:00 pm. The Applicant, Fritzie Balikig, shall facilitate virtual and/or telephone parenting time. (d) In the event that the Applicant, Fritzie Balikig is unable to facilitate virtual and/or telephone parenting time due to her work schedule, alternate times and dates shall be canvassed in advance. (e) The parties can arrange alternate parenting time in the event that the scheduled visit is unable to occur, or such other times as agreed by the parties.

Part Three – Parenting

3.1 The mother’s position and evidence

[20] The mother is seeking to continue the status quo with respect to primary residence of the child with her and sole decision-making by her for the child.

[21] The mother’s evidence is that the father was verbally, psychologically and financially abusive to her during their relationship. She testified that the father would force himself sexually on her in the presence of the child. The child was aware of this occurring on at least one occasion. She alleged that the father frequently became drunk and was verbally abusive and demeaning to her in the presence of the child. Her evidence is that she stayed in the relationship due to her pregnancy.

[22] The mother stated that the father asked her to do heavy work in the yard during her pregnancy and to accompany him on his service calls cleaning fish tanks. He continued to expect her to accompany him on his service calls following her c-section, in spite of her pain and discomfort.

[23] The mother’s evidence is that after the child’s birth in February 2017, she took a maternity leave from her employment as a personal support worker to care for her full time. Her evidence is that she was the primary caregiver. She was the parent who would put her to sleep, bathe her and feed her. She breast fed the child.

[24] Following the separation in March of 2020 when the child was three years of age, she continued to reside with the mother. The mother made all decisions with respect to the child’s education and medical care.

[25] On October 22, 2020, the mother commenced the within Application for primary residence and sole decision-making. On May 13, 2021, the mother brought a motion for temporary orders for primary residence and sole decision-making which were granted.

[26] The mother’s evidence is that she and the child currently reside in a one-bedroom apartment. The mother has made a small bedroom for her with a partition. The child has her own bed. The mother said that the child is doing well at school and that she has created a healthy routine for her. After she comes home from school she changes clothes and has a snack. She is permitted 30 minutes of television and then plays outside at the park. The child eats dinner between 6:30 pm and 7:00 pm. The mother then reads a book to her before bed and her bedtime is 9:30 pm. The mother does not smoke.

[27] The mother testified that three of the child’s classmates live in her building. She enjoys a close bond with them. On weekends the mother takes the child to church and swimming in the community centre. The child also has a close relationship with the mother’s older children and her grandchildren. The mother plans to enrol the child in piano, dance and singing lessons once she has the means to do so.

[28] The mother asserted that the parties disagree on too many issues for a joint decision-making responsibility order to be in the child’s best interests. She says that she has always been the parent to make major decisions for the child and has made them responsibly. She seeks an order for sole decision-making for the child.

[29] The mother stated that the father has demonstrated poor parenting judgment. Furthermore, he does not respect her opinion as a parent and has demonstrated that he will ignore her input. She provided a number of examples in her evidence.

[30] The first example occurred during their relationship. As the child grew older (six months of age onwards), the father started to take her to work with him. The father operates a business specializing in cleaning aquariums. The father would take the child to work with him for the whole day. The mother’s evidence is that the child would not eat properly, her diaper would not be changed as she was transported from one client site to the next. When the child came home at night she would reek of smoke/marijuana and have a soiled diaper. The mother disagreed with this practice and wanted the child to attend daycare if her parents were working. The father continued this practice, at times removing the child from daycare to accompany him on service calls in the face of the mother’s disagreement and told her not to teach him how to parent a child.

[31] A second example of the father not respecting the mother’s parental opinion and demonstrating poor judgment occurred following their separation. The mother gave evidence that the father refused to follow the child’s sleep schedule because his house had different rules. The father let the child stay up for as long as she wanted.

[32] A third example occurred when the father disregarded medical direction with respect to the care of the child. The mother described two occasions that a puffer was prescribed for the child. The first time was during their relationship. The child’s doctor prescribed the puffer for morning and evening. The father refused to use the puffer. On the second occasion, post separation, the puffer was prescribed for the child and was provided to the father to use during his time caring for the child. The father did not give her the puffer. Under cross-examination, the father testified that he failed to use the puffer because the child did not want to use it. Further, he was concerned about the side effects of the puffer that he had “read about” and as a result disregarded both the doctor’s instructions and the mother’s opinion.

[33] The mother’s evidence is that the father withheld his consent to reasonable requests to travel. Her example was following the separation when her sister who resides outside of Canada was diagnosed with breast cancer in 2021. The mother wanted to accompany her sister for surgery and treatment. She asked the father to look for her passport which she believed she left in the home. The father refused to assist in searching for the passport.

[34] The mother also provided evidence of the father’s repeated contact with the police to manage their parenting issues. According to her evidence in chief, on August 12, 2020, the father called the police with respect to serving his court documents. On May 11, 2021, the father called the police to accuse the mother of hacking his Facebook account. On May 24, 2021, the father called the police accusing them of taking the child to the Philippines. On May 5, 2022, the father called the police asking that the mother be charged with public mischief. In August of 2022, the mother called the police from the father’s driveway when he did not come outside with the child after they had been texting back and forth.

[35] The mother admitted that she refused to permit the father to travel with the child to Petawawa in the past because she did not trust him when he was away. She was worried that the child would not be eating properly or be dressed properly. She also worried about the father’s drinking and smoking habits. She was particularly worried about second-hand smoke because her father had suffered from lung cancer.

3.2 The father’s position and evidence

[36] The father is seeking primary residence of the child in his home. He plans to transfer her to a school in his neighbourhood. While he sought a joint decision-making order in his Answer, at trial he sought sole decision-making for the child with the exception of decisions with respect to religious upbringing which he will leave to the mother. He further seeks to deny the mother overnight parenting time until she completes a parenting and anger management program.

[37] The father’s evidence is that when the child was a baby and the mother was on maternity leave she did most of the child care and he would sometimes bathe the child. He confirmed that he asked the mother to accompany him on service calls after the child’s birth and that he asked her and her eldest daughter to undertake a heavy construction project (disassembling a firepit and rebuilding it) in his backyard.

[38] The father asserted is that he can provide a wonderful environment for the child. She has a bedroom, a backyard to play in, lots of toys, a loving big brother and two puppies. She enjoys helping the father feed the fish in his fish tanks. She also has an electric car and a kiddie pool. He enjoys taking her to Canada’s Wonderland, the Science Centre and African Lion Safari. On the school night at his home he offers her snacks, they play in the back yard, watch television and he sits with her until she falls asleep before nine. He doesn’t smoke around the child. He plans to sign her up for extra-curriculars in the area so that she will have lots of friends when she starts school in his neighbourhood in the fall. His adult son Aaron works from home and is available to assist with caring for the child when he is unavailable. His testified that he has never been late picking up or dropping off the child at the mother’s home or at school.

[39] The father’s evidence confirms that from his perspective there is a great deal of conflict in his dealings with the mother. His evidence is that he “made the mother leave the home three times, but only broke up with her once” when they separated in March 2020. He admitted that he “kicked her and the child out” when they finally separated.

[40] He blames the conflict entirely on the mother: “it’s all from Fritzie, show me one piece of evidence that I did anything bad to Fritzie” or “she causes huge problems that didn’t need to happen and I always had to fix them.” He testified that “there is no trust towards Fritzie, she has lied to me so many times even knowing I would eventually find out. I seldom lie to her.” The father describes the mother as an abuser and himself as a victim with no role to play in creating conflict between them.

[41] The father frequently used language during the trial which denigrated and demonstrated his contempt for the mother. His evidence is that “Ashleigh loves both of her parents but sometimes does not like her mother.” He demanded that the mother repeat the “two rules of my house” on cross-examination. He described her request for child support as “her boot on my throat.” He repeatedly described her as a liar. His position is that the mother needs “mental help” because she is “bat crap crazy.” One of the father’s customers died two days after meeting the mother which he ascribes to her being “bad luck.” He refers to a one-month period in which he did not have parenting time as “the abduction.”

[42] The father also gave evidence that the mother failed to pay him back for money she borrowed from him for trips to the Philippines. He testified that the mother “got free room and board” and would “buy food if she wanted something that he didn’t have” and that he was the “co-signer on her car.” The father also accused the mother of defrauding the Second Career program.

[43] The father testified that he freely shared this negative characterization of the mother with others. He described using “public pressure” and talking to everyone about the separation to get her to stop “torturing” him and “destroying his life.” His evidence is that he knows the child’s teachers, and they all know the “court story.” He further states that his customers know the “court story” as well.

[44] The father gave evidence that his daughter came to work with him because no one has told him any reason it is not safe and he finds it fun to be with his child. His evidence is that he took her to work and out of daycare as often as he could because the child was emotional at the daycare drop off. The father’s evidence is that the mother enrolled the child in daycare in 2020 because it was free and would allow her to work while “withholding Ashleigh from her daddy.” Under cross-examination he described the child coming to work with him as positive for her development because his son Aaron enjoyed it as a child.

[45] The father acknowledged sexual contact with the mother in the presence of the child (in the parents’ bed during co-sleeping). His evidence is that the child asked what was happening on one occasion and he thought it was funny.

[46] The father confirmed that he did not abide by any sleep schedule for Ashleigh until she was school age in spite of the mother’s request to do so. He explained that as a three-year old who was not in school or daycare, she did not require a sleep schedule.

[47] The father asserted that he does not drink too much. He confirmed that he smokes but outside and uses a vaporiser. He grows cannabis at his home and smokes cannabis at his home. He agreed that he was cautioned by the Catholic Children’s Aid Society worker to not use it when he was parenting the child. Under cross-examination he insisted that his use did not affect his ability to parent because it was “low quality weed.”

[48] Under cross-examination the father’s evidence is that he had failed to use the puffer prescribed for the child because “Ashleigh didn’t want to use it.” He also testified that he was concerned about side effects and was insisting on a specialized diagnosis of asthma from a professional other than the child’s doctor before he would comply with the use of a puffer. He criticized the mother for “using it behind my back.”

[49] The father stated that he may have told the mother that he has her passport and would not give it back. He does not remember. He testified that he is terrified that the mother will take the child away to the Philippines and that he will never see her again.

[50] The father called a Catholic Children’s Aid worker, Stephanie Amaral, to testify about the investigation she conducted at the request of the mother. The mother had reported to the Catholic Children’s Aid worker that the child had disclosed to her that her father had touched her private parts. The child also made this disclosure to her doctor. The Catholic Children’s Aid worker investigated the disclosure, but no abuse was verified.

Part Four – Decision-making Responsibility and Primary Residence

4.1 Legal Considerations

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

[52] 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.

[53] 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 communicate and co-operate, in particular with one another, on matters affecting the child; (j) any family violence and its impact on, among other things, (k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (l) the appropriateness of making an order that would require person 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.

[54] The Ontario Court of Appeal in Kaplanis v. Kaplanis, 2005 ONCA 1625 sets out the following principles to consider in determining whether or joint decision-making responsibility order is appropriate:

a) There must be evidence of historical communication between the parents and appropriate communication between them. b) It can’t be ordered in the hope that it will improve their communication. c) Just because both parents are fit does not mean that joint custody should be ordered. d) The fact that one parent professes an inability to communicate does not preclude an order for joint custody. e) 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. f) The younger the child, the more important communication is.

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

4.2 Analysis

[56] The court finds that it is the child’s best interests that she remain in the primary care of the mother and that the mother have final sole decision-making responsibility for the child based on the following findings of fact.

[57] The court makes the following findings of fact:

(a) The mother is the parent better able to provide for the child’s physical, emotional and psychological safety, security and well-being. There is evidence before the court that the father prioritizes his needs and opinions over the basic needs of the child. He removed her from her daycare to accompany him at work because he could not tolerate her reaction to the drop-off and he found it fun. As a result the child was subjected to days in different home/workplaces while he maintained aquariums. The father did not abide by a sleep schedule for the child. As a result the child did not have a regular bedtime in his care until she was school age. The father did not follow through with the child’s prescribed puffer medication on two occasions. He believed that he knew better than her doctor. The court finds that the father is stubborn in his parenting opinions and that his actions reflect poor parenting judgment. (b) The mother is the parent better able to make major decisions in the child’s best interests. The evidence before the court is that the mother has taken many steps that reflect sound parental judgment. She resides in an apartment with the child and has ensured that the child has her own space. She sought out daycare for the child when she and the father had work commitments. She insisted on a sleep schedule for the child. She has facilitated friendships for the child with peers in her building. She ensured that the child has a doctor and she follows their professional advice. She has expressed her concern to the father about his consumption of alcohol, cannabis and his smoking in the presence of the child. Her concern about second-hand smoke is well-founded given the child’s difficulty breathing that led to a puffer being prescribed on two occasions. (c) The child has primarily lived with the mother for two and a half years following the parties’ separation. The child is used to and has done well with this routine. There is no basis now to interfere with this long-standing arrangement. (d) The child has a good relationship with both parents. Both parents spoke about the child with love and affection. The current arrangement is facilitating a loving relationship with both parents. (e) The child is too young to ascertain her views and preferences. (f) The mother has provided the child with a stable home. (g) Both parents have appropriate education plans for the child but the child has existing relationships in her current school. (h) The mother is the parent more likely to facilitate the other parent’s relationship with the child. The evidence before the court is that the father is contemptuous of the mother as a person and as a parent. He vilifies her to others freely and openly. He changed his position from seeking joint decision-making in his pleadings to seeking sole decision-making by him during the trial. He further seeks to deny her overnight parenting time until she completes a parenting and anger management program without providing any evidence of the need for this programming. (i) The mother is the parent more likely to follow court orders. The evidence before the court is that the father breached the temporary court order with respect to following through with use of the puffer. Justice Sherr’s temporary order specified that he was to follow any medical direction given to him by the mother of for the child. (j) The father has not met his parental obligation to financially support the child while the child is living in mother’s care. The father has voluntarily paid child support since the separation, but unilaterally drastically reduced the support paid (from $500.00 to $50.00 per month) in the months leading up to the trial. This steep reduction in child support shows an utter lack of concern by the father for the stability of the primary residence of the child and her well-being. (k) The mother has not alienated the child from the father as he alleged. The father’s evidence is that he and the child have a positive relationship and have enjoyed their time together. The evidence supports the finding that the mother has facilitated the father-daughter relationship in spite of the vitriol from the father.

[58] The court order will provide that the mother is to make meaningful efforts to first consult with the father prior to making a major decision for the child.

[59] The court order will permit the father to obtain information directly from the child’s service providers.

4.3 Joint Decision-Making

[60] The father’s Answer seeks an order for joint decision-making. While his position at trial changed to a claim for sole decision-making, this will be addressed as his alternative position.

[61] There is no basis to believe that the parties can effectively communicate with one another in the best interests of the child now, or in the future. The father’s statements at trial demonstrate that the father has no respect for the mother and has no compunction about sharing his low opinion of her with the court and with adults involved in his life and the child’s life.

[62] The parties have disagreed on the child’s daycare, her participation in father’s work, her medical care, her sleep schedule, her exposure to cannabis and cigarette smoke and her travel. The father has repeatedly contacted the police to resolve parenting issues. The mother has also contacted the police on one occasion.

[63] The parties disagree on too many important issues regarding the child and communicate too poorly for a joint decision-making responsibility order to be effective. Making such an order would paralyze important decisions being made for the child.

[64] The court finds that the mutual trust and respect which are the basic elements for a joint custody order to work effectively are not present between these parties.

Part Five – Parenting Time

5.1 Legal considerations

[65] In determining parenting time, the court must consider the relevant best interests considerations contained in subsections 24(2) to (7) of the Act, as described in Part 4.1 above.

[66] Subsection 24(6) of the Act states that in allocating parenting time, the court shall give effect to the principle that the child should have as much time with each parent as is consistent with the best interests of the child.

[67] 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 is different and the court must focus on the child’s best interests in determining the appropriate parenting time order.

[68] An equal parenting time plan requires a high level of communication and coordination between the parties, particularly when the child is very young. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child. See: Bokor v. Hidas, 2013 ONCJ 40; L.I.O. v. I.K.A., 2019 ONCJ 962; J.N. v. A.S., 2020 ONSC 5292.

[69] Before concluding a shared parenting regime, which will likely require frequent communication between the parents, is in the best interest of a 5 year old child, the court ought to be able to find at least that:

(a) The parties can speak to one another directly and not just in writing; (b) The parties behave respectfully towards one another; (c) The parties will cooperate to ensure the child’s needs are being met; (d) The parties are capable of putting the needs of the child before their own; (e) The parties demonstrate a reasonable amount of emotional maturity and will demonstrate that emotional maturity where there is a disagreement; and, (f) The parties will behave appropriately towards one another at all times in front of the child.

5.2 Analysis

[70] The father seeks a parenting time order that upends the current temporary order and provides him with 4 to 5 days a week with the child. He plans to change the child’s school to a school near to his home. He also wants the order to specify that the child can choose to vary the schedule as she wishes.

[71] This total upheaval of the current arrangement is not warranted on the facts before the court. The child has stability in her current residence and school arrangement. She has been primarily cared for by her mother since her birth. She is thriving in her school and community. She is also only five years of age and imposing on her the responsibility of “choosing” her schedule is not in her best interests.

[72] A shared or equal time schedule for a young child requires a high level of communication and cooperation that is not in evidence in this case. It is not in the child’s best interests as the communication between the parties is poor. There is no basis to believe that the parents could effectively coordinate schooling, medical appointments and extra-curricular activities for the child within a shared or equal time schedule.

[73] The court finds that it is in the child’s best interests to implement the regular parenting time schedule suggested by the mother. The father will have parenting time with the child on alternate weekends from Friday after school until a Monday morning return to school. If the Monday is a statutory holiday then drop off will be on Monday at 7:00 pm. The father will also pick up the child on each Wednesday from after school until a Thursday morning return to school.

[74] The court finds that it is also in the child’s best interests to grant both parents extended holiday time with the child.

Part Six – Incidents of parenting

[75] Section 28 of the Act sets out the different types of parenting orders that a court can make. These include orders regarding documentation for children and travel with children.

[76] The mother seeks an order that she be able to obtain and renew government documentation for the child and to travel with the child outside of Canada to countries party to the Hague Convention without the father’s consent. The order she seeks would require her to provide a travel itinerary 14 days prior to the departure date with make up time to be agreed upon. She further seeks an order that the father may travel with the child with her written consent, not to be withheld unreasonably with a travel itinerary to be provided 14 days prior to the departure date. She further seeks a final order that the father shall not remove the child from the Greater Toronto Area without her consent.

[77] The father opposes these orders. The father seeks a final order that dispenses with the need for consent of the mother for his travel outside of the GTA. The order would also dispense with the need for the mother’s consent for his travel outside of Canada but would require 14 days notice and a travel itinerary with make up time to be agreed upon. The father seeks an order that the mother be banned from travel outside of Canada with the child until the child is 10 years of age.

[78] The court finds that making an order that the mother be permitted obtain government documentation without the father’s consent is in the child’s best interests. Given the father’s fear of the mother fleeing the country with the child, the court has no confidence that the father will reasonably provide consents for the mother to obtain or renew the child’s passport. His failure to cooperate with the mother on other basic requests also makes it more probable than not that he would make it difficult for her to secure other updated documentation for the child.

[79] There is evidence before the court that the father fears and strongly opposes the mother travelling with the child to the Philippines. He has communicated this fear to police and to the Catholic Children’s Aid Society. The evidence is that he is highly unlikely to consent to a request from the mother to visit her family in the Philippines with the child to allow the child to connect with her extended family and cultural heritage.

[80] There is no evidence before the court that either parent has plans to remove the child from either the GTA or from the country. Accordingly, the court will not make any non-removal orders. In the event that either party seeks to relocate from the GTA and this relocation would affect the other parents’ parenting time, they will be obliged to serve and file a Notice of Relocation as required in s.39.3 of the Children’s Law Reform Act. If there is opposition from the other parent, the matter will be heard and determined on the evidence at that time.

[81] Accordingly, the court orders that the mother will be able to travel with the child within Canada or outside of Canada without the father’s consent during her parenting time. She may take a trip with the child outside of Canada for a period of up to one month. She will be required to do the following at least 14 days in advance of a trip within Canada and 30 days in advance of a trip outside of Canada: provide the father with a travel itinerary, copies of return airplane or train tickets, addresses and contact numbers for the duration of the stay and make arrangements (time zones permitting) for the father and child to communicate during the trip. An agreement as to make up time will be negotiated prior to departure.

[82] There is evidence before the court that the mother opposed the father’s plan to travel with the child within Ontario. He had a trip planned to Petawawa that she admitted she opposed on the grounds that she did not trust the father to appropriately care for the child. This evidence suggests that the father may have difficulty securing the mother’s consent for travel that he plans with the child, even if it is only in the province.

[83] Accordingly, the court orders that the father will be able to travel without the consent of the mother during his parenting vacation time. He will be required to do the following at least 14 days in advance of a trip within Canada and 30 days in advance of a trip outside of Canada: provide the mother with a travel itinerary, copies of return airplane or train tickets, addresses and contact numbers for the duration of the stay and make arrangements (time zones permitting) for the mother and child to communicate during the trip. If required, an agreement as to make up time will be negotiated prior to departure.

Part Seven – The start date for support

7.1 Legal considerations

[84] The mother seeks an order that child support be ordered retroactive to the date of separation of March 1, 2020. She filed her application on October 22, 2020. The retroactive period is therefore approximately eight months.

[85] The father asks that there be no order for retroactive child support and if retroactive support is owing, that the child support he paid voluntarily during this period was sufficient.

[86] 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:

34 (1) In an application under section 22, 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.

[87] 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 the 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 v. Graydon, 2020 SCC 25. 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.

[88] 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.

[89] 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.

[90] 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 25. The third step will be to quantify the proper amount of support for each year since the date of retroactivity, calculated in accordance with the guidelines.

7.2 Analysis

[91] The mother’s evidence is that she gave father notice that she was seeking child support from him immediately following the separation. As a result, the father began to make voluntary child support payments monthly. The father paid $500.00 per month following the parties’ separation in March 2020 and continued paying at this level until she commenced the within Application in October of 2020.

[92] The mother did not have the benefit of any financial disclosure from the father during the March to October 2020 period. She had no way of knowing if the amount being paid on a voluntary basis was in keeping with the guidelines. The father’s evidence is that he informed the mother that he was paying “more than the guideline support” because he did the same for his son Aaron and he wanted to “buy peace.”

[93] There is no evidence before the court that the mother sought an increase in the child support being voluntarily paid during this eight-month period. Accordingly, the presumptive date for the commencement of child support is the date of formal notice, the commencement of her application seeking child support according to the guidelines in October 2020.

[94] The second step is for the court to determine whether or not it should exercise its discretion to depart from the presumptive date of retroactivity where the result would be unfair. In the case before the court there is evidence that the father failed to make any financial disclosure of his income to the mother after she asked for support. He unilaterally set the amount payable and assured her that it was “more than guideline support”. This utter failure to disclose his income which would have resulted in higher support payments is clear evidence of blameworthy conduct.

[95] The court is also required to consider the reasons for any delay on the part of the support recipient. Given that the evidence before the court is that the mother brought her application within eight months following the date of separation, the modest delay is reasonably explained by her focus on getting a secure residence established for herself and the child. The father’s lack of financial disclosure did not give her the opportunity to assess if she should come to court earlier and is also an understandable reason for the delay.

[96] Furthermore, there is no evidence before the court of undue financial hardship to the father that would be caused by the retroactive award sought. Father’s financial statements reflect that he is the sole owner of a detached house in Toronto. However, there is evidence before the court that the failure to order retroactive support would create hardship for the mother and the child. The mother’s evidence is that the child’s bedroom is created in their one-bedroom apartment by a partition. She stated she has been unable to engage the child in any extra-curricular activities as she has lacked the financial means to do so.

[97] Accordingly, the court finds that there are grounds to depart from the presumptive date of retroactivity as the result would be unfair. Child support is payable commencing on the date of separation of March 1, 2020.

Part Eight – Amount of child support

8.1 Positions of the parties

[98] The mother’s position is that the father has failed to provide adequate financial disclosure throughout this litigation. He has manipulated his financial records to declare taxable income that is far less than what he really earns. The mother claims that the father is deducting unreasonable expenses from his business that should be added back to his income for calculating his support obligations. She is seeking guideline child support that is based on the father’s projected total income for 2022 based on the TD bank account statement provided.

[99] The father’s position is that the child support he has paid voluntarily has led to an overpayment of child support. His position is that there should be no arrears owing and no ongoing child support payable due to his proposed shared parenting time schedule.

8.2 Legal considerations for Imputing Income

[100] Section 19 of the Child Support Guidelines reads as follows:

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

(a) The parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse; (b) the parent or spouse is exempt from paying federal or provincial income tax; (c) the parent or spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada; (d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines; (e) the parent’s or spouse’s property is not reasonably utilized to generate income; (f) the parent or spouse has failed to provide income information when under a legal obligation to do so; (g) the parent or spouse unreasonably deducts expenses from income; (h) the parent or spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and (i) the parent or spouse is a beneficiary under a trust and is or will be in receipt of income or benefits from the trust.

(2) Reasonableness of expenses. – for the purpose of clause (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act (Canada).

[101] 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.

[102] The court stated in Drygala v. Pauli, 2002 ONCA 41868, [2002] O.J. No. 3731 (Ont.C.A.) that there is no need to find a specific intent to evade child support obligations before income is imputed.

[103] A self-employed person has the onus of clearly demonstrating the basis of his or her net income. This includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes. See: Whelan v. O’Connor, 2006 ONSC 13554, [2006] O.J. No. 1660, (Ont.Fam.Ct.).

[104] Self-employed persons have an inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the recipient can draw conclusions and the amount of child support can be established. See: Meade v. Meade (2002), 2002 ONSC 2806, 31 R.F.L. 5th 88 (SCJ). This includes the obligation to present information in a user-friendly fashion.

[105] 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 ONSC 46927, [2008] O.J. No. 3616, (Ont.S.C.); Maimone v. Maimone, 2009 ONSC 25981, [2009] O.J. No. 2140, (Ont.S.C.).

8.3 Analysis

[106] The father gave evidence that he operates an aquarium cleaning business. He has operated the business since 1990. He travels to homes, offices and movie sets to clean and maintain aquariums. His evidence is that during the COVID pandemic his business in offices was negatively affected and he mitigated the impact of this by breeding fish in his home and selling them online.

[107] The father filed two financial statements. The first was sworn on January 17, 2021. His Notices of Assessment for 2017, 2018 and 2019 were attached and filed.

[108] On July 15, 2022, the father was ordered to serve and file an updated sworn financial statement by August 23, 2022 attaching his 2020 and 2021 complete income tax returns and Notices of Assessment and documentary evidence of all income received in 2022 from all sources.

[109] The father’s second financial statement was sworn on September 12, 2022. On October 14, 2022, (the Friday prior to the start of trial on Monday October 17, 2022) the father provided his income tax returns for 2019, 2020 and 2021. The 2019 income tax return is incomplete and does not provide information with respect to the cost of goods sold or expenses deducted. No Notices of Assessment were provided for 2020 or 2021. A single page entitled Notice of Assessment for 2021 which appears to be a summary print out was provided. It is incomplete and only reflects the final amount owing to the father following his income tax filing. No documentary support was provided for any of the income or expenses claimed in the income tax returns.

[110] The father’s tax returns reflect the following total income and deductions:

a. 2019 gross income $129,722.00; deductions $75,815.82 b. 2020 gross income $98,451.79; costs of goods sold $35,801.65; expenses deducted $32,696.38 c. 2021 gross income $83,682.13; costs of goods sold $32,206.46; expenses deducted $42,274.18.

[111] The father provided a one-page document entitled “Carl’s Aquarium Servicing – Incorporated under the Laws of Ontario.” The document is a word document and is half a page. It purports to set out the Statement of Revenues and Expenses for the father’s business for the period for January 1, 2022 to July 31, 2022. It reflects total revenue of $31,062.00 and total administrative and operative expenses of $36,251. No documentary support was provided for any of the income or expenses listed in the one-page document.

[112] The father also provided a TD bank account statement. The TD bank statement that was entered as evidence at trial covers the period from December 31, 2021 to October 1, 2022. The father identified this bank account as his only bank account for both personal and business use. The deposits are related to his business. For the 2022 year, those deposits totalled $96,402.56 for the first nine months of 2022.

[113] Under cross-examination, the father explained that the one-page document for 2022 mistakenly identifies his business as incorporated. He could not explain how this mistake was made. Accordingly, he has no income tax or supporting documentation for his corporation to disclose.

[114] Under cross-examination, the father was unable to explain how his personal income was calculated in his income tax returns. When asked about his income or specific expenses listed in his one-page 2022 document or in his tax returns, the father could neither provide documentary evidence of the income nor the deductions claimed. He also could not explain the connection between the expenses for which he sought deductions and his business.

[115] For example, he could not explain $3,600.00 deducted for rent in 2021 when he owns his home and did not rent an office or a storage space. He could not explain $5,700.00 deducted in 2021 for professional fees. His responses to questions about the specific expenses were either “I have no idea” or that he “didn’t do his own books.” He testified that his accountant “Joe” would be able to explain, but he presented no evidence from his accountant and did not call him as a witness.

[116] The court draws an adverse inference from the father’s failure to provide adequate financial disclosure and his inability to explain how his income or deductions were calculated.

[117] The court accepts the father’s testimony that his aquarium business was negatively affected by the pandemic as his corporate clients no longer maintained office aquariums due to the migration home of their workers. This would in part explain the reduction in gross income for 2020 and 2021.

[118] The court also accepts the father’s testimony that he has mitigated the losses caused by COVID by embarking on an online fish breeding/sales business to mitigate this loss in income. This aligns with the uptick in his income flow in 2022 reflected in his TD bank records.

[119] This brings the analysis to what expenses deducted by the business are appropriate for support purposes. Given the absence of documentary support and lack of any explanation for the expenses, the court finds that the expenses claimed in the income tax returns were not an accurate reflection of the actual expenses.

[120] The TD bank statements in evidence provide the most reliable evidence with respect to father’s income and expenses that are before the court. The TD bank statements in evidence are for the period from December 31, 2021 to September 29, 2022. The father advises that it is his only account for both personal and business purposes. The mother seeks to rely on these records for the purpose of the calculation of the father’s current gross income for 2022.

8.4 Father’s Income 2020

[121] The father’s tax return for 2020 reports gross income of $98,451.79. The father deducted the costs of goods sold of $35,801.65 and deducted expenses of $32,696.38. He paid tax on a total income of $29,953.76.

[122] The father’s 2020 tax return claims a significant deduction for the costs of goods sold. However, the father failed to provide any evidence to support this deduction. Accordingly, I will not be allowing any deduction for these expenses.

[123] The father’s 2020 tax return claims significant expenses as follows:

(a) Meals and entertainment ($409.63) (b) Insurance ($7,346.47) (c) Interest and bank charges ($565.84) (d) Business taxes, licences and memberships ($550.84) (e) Professional fees (legal and accounting fees) ($5,700.00) (f) Utilities ($11,304.47) (g) Auto expenses ($1073.37) (h) Gas ($5,577.62) (i) Parking ($168.14)

[124] The father provided no documentation to support any of the claims above. Under cross-examination he was not able to provide any details of same.

[125] The father’s 2022 TD Bank statements reflect monthly withdrawals for insurance for Certa House and Auto Insurance of approximately $600.00 per month. Father’s September 2022 financial statement indicates that $450.00 per month is for car insurance.

[126] Given that the father’s evidence is that his business involves driving to client sites to service aquariums, I find that it is reasonable to deduct 80% of the annual car insurance expense at $4,320.00 per year. I would also allow the deduction of the auto expenses ($1073.37), gas ($5577.62) and parking ($168.14) given that they are reasonably related to his self-employment. I would further allow a deduction of $1500.00 per annum for his accountant fees. I would not permit the deduction of any of the other purported expenses.

[127] Therefore, the father’s income for 2020 is imputed as follows:

$98 451.79 (gross income) – $12,639.13 (allowed expenses) = $85,812.66

[128] The income analysis does not end there. It is appropriate in these circumstances to gross-up the father’s income, as he is declaring and paying tax on substantially less income than he is actually earning. This is done to ensure consistency of treatment where a party is found to have arranged his affairs to pay less tax on income. See Sarafinchin v. Sarafinchin, 2000 ONSC 22639, 189 D.L.R. (4th) 741, [2000] O.J. No. 2855, 2000 CarswellONT 2640 (Ont.S.C.).

[129] To determine the appropriate gross-up figure, I have contrasted the father’s declared income of $29,953.76 to the income that I have imputed to the father of $85,812.66. A software analysis shows that the gross-up of the father’s income brings his annual income to $110,799.00. This is the income that will be used for the support calculation of child support for 2020. The calculation is appended to this decision.

8.5 Father’s Income 2021

[130] The father’s tax return for 2021 reports gross income $83,682.13, the costs of goods sold $32,206.46 and expenses deducted of $42,274.18

[131] The father’s 2021 tax return claims a significant deduction for the costs of goods sold. However, the father failed to provide any evidence to support this deduction. Accordingly, I will not be allowing any deduction for these expenses.

[132] The father’s 2021 tax return claims significant expenses as follows:

(a) Meals and entertainment ($173.70) (b) Insurance ($1,909.98) (c) Interest and Bank Charges ($696.88) (d) Business taxes, licences and memberships ($55.98) (e) Professional fees (includes legal and accounting fees) ($5,700.00) (f) Rent ($3,600.00) (g) Repairs and maintenance ($915) (h) Utilities ($8,628.69) (i) Delivery, freight and express ($51.74) (j) Motor vehicle expenses ($20,542.21)

[133] The father provided no documentation to support any of the claims above. Under cross-examination he was not able to provide any details of same.

[134] The TD bank records reflect monthly withdrawals for utilities; Enbridge, Hydro and City of Toronto (Water). I rely on this evidence to find that the total cost of utilities for the father’s home is $6,213.00 per year.

[135] The father gave evidence that he gradually mitigated for the decline in his aquarium maintenance business clients by developing an online fish sale business. These fish are bred in aquariums in his basement. I find that this enterprise would likely require heat, water and electricity and find that 20% of the total cost of his utilities is an appropriate expense for a deduction of $1,242.60 per year.

[136] The father’s claimed deduction for car expenses in 2021 is $20,542.21. This is roughly double the car expense deduction claimed in 2020. There is no documentation to support the car expenses claimed on the tax return in evidence.

[137] The father’s September 2022 sworn financial statement indicates that $450.00 per month was paid for car insurance. Given that the father’s evidence is that his core business involves driving to client sites to service aquariums, I find that it is reasonable to deduct 80% of the annual car insurance expense at $4,320.00 per year.

[138] I also note that the father lists $45 per month as payable for house insurance. In accordance with my finding above that the basement is the site for the fish breeding enterprise, I will allow a deduction of 20% of the annual home insurance total at $108.00.

[139] The father’s 2022 financial statement claims $720.00 per month for gas and $106.00 per month for car maintenance. Based on the evidence that he travels to work sites to service aquariums, I find that is reasonable to deduct 80% of the annual cost of these expenses as claimed on his September 2022 financial statement for an annual deduction of $7,929.60. I would further allow a deduction of $1500.00 per annum for his accountant fees. I would not permit the deduction of any of the other purported expenses

[140] Therefore, the father’s income for 2021 is imputed as follows:

$83,682.13 (gross income) – $15,100 (allowed expenses) = $68,582.13

[141] Again, the undeclared income needs to be grossed up. I have contrasted the father’s declared income of $9,201.49 to the income that I have imputed to the father of $68,582.00. A software analysis shows that the gross-up of the father’s income brings his annual income to $90,394.00. This is the income that will be used for the support calculation of child support for 2021. The calculation is appended to this decision.

8.6 Father’s Income 2022

[142] The 2022 TD bank records reflect gross income of $96,402.56 for the first nine months of 2022. I rely on this evidence to find that the father’s current gross income is $10,000.00 per month or $120,000.00 annually.

[143] The 2022 TD bank records also reflect monthly withdrawals for utilities; Enbridge, Hydro and City of Toronto (Water). I rely on this evidence to find that the total cost of utilities for the respondent’s home is $6,213.00 per year. The father gave evidence that he has mitigated for the loss of his aquarium maintenance business clients with an online fish sale business. These fish are bred in aquariums in his basement. I find that this enterprise would likely require heat, water and electricity and find that 20% of the total cost of his utilities for a deduction of $1,242.60 per year.

[144] The 2022 TD bank records also reflect monthly withdrawals for insurance; Certa House and Auto Insurance. These withdrawals total approximately $600.00 per month. Father’s September 2022 financial statement indicates that $450.00 per month is for car insurance.

[145] Given that the father’s evidence is that his business involves driving to client sites to service aquariums, I find that it is reasonable to deduct 80% of the annual car insurance expense at $4,320.00 per year.

[146] I also note that the father lists $45 per month as payable for house insurance per month. In accordance with my finding above that the basement is the site for the fish breeding enterprise, I will allow a deduction of 20% of the annual home insurance total at $108.00.

[147] The father’s 2022 financial statement claims $720.00 per month for gas and $106.00 per month for car maintenance. Based on the evidence that he travels to work sites to service aquariums, I find that is reasonable to deduct 80% of the annual cost of these expenses as claimed on his September 2022 financial statement for a deduction of $7,929.60.

[148] Based on the evidentiary findings above, the father’s income for 2022 is imputed as follows: $120,000.00 (imputed gross income) - $13,600.20 (allowed expenses) = $106,399.00. This is the income that will be used for the support calculation of child support for ongoing child support. The ongoing support will be payable at $961.00 per month for one child.

[149] There was no claim made by either party for past section 7 expenses or for specific section 7 expenses that are currently being incurred. If there are any incurred in the future they will be shared proportionately by the parties. I find that the mother’s income is $45,790.00 based on her sworn financial statement. I have found that the father’s imputed income is $106,399.00 for the purposes of ongoing child support. Accordingly, the future s. 7 expenses will be paid 30% by the mother and 70% by the father.

Part Nine – Calculation and payment of arrears

[150] The parties agreed on the amount that the father had voluntarily paid to date towards child support. He will be given credit for these payments.

[151] This decision will result in support arrears to the father of $20,525.00, calculated as follows:

[152] Child support arrears (March 2020 to December 1, 2022):

Year	Table Support	Amount Paid	Outstanding
2020 (10 months x $995)	$9,950.00	$3,400.00	$6,550.00
2021 (12 months x $837)	$10,044.00	$5,183.75	$4,860.25
2022 (11 months x $961)	$10,571.00	$1,456.25	$9,114.75
Total Arrears:			$20,525.00

[153] The father owns his own home. Therefore he has access to capital to pay a portion of these arrears. He shall pay $10,000.00 towards the support arrears within 45 days. He may pay the balance of the arrears at $200.00 each month, starting December 1, 2022. However, if he is more than 30 days late in making any ongoing or arrears support payment, the full amount of arrears then owing shall immediately become due and payable.

Part Ten – Conclusion

[154] A final order shall go on the following terms:

Primary residence, decision-making responsibility and incidents of parenting

(a) The child’s primary residence shall be with the mother. (b) The mother shall have sole decision-making responsibility for the child. (c) The mother shall meaningfully attempt to consult with the father before making any major decision about the child. (d) The mother may obtain or renew all government documentation for the child, including passports, without the father’s consent. (e) The mother may travel with the child without the consent of the father within Canada or outside of Canada during her parenting time. She may take a trip with the child outside of Canada for a period of up to one month. She will be required to provide at least 14 days in advance of a trip within Canada and 30 days in advance of a trip outside of Canada the father with a travel itinerary, copies of return airplane or train tickets, addresses and contact numbers for the duration of the stay and make arrangements (time zones permitting) for the father and child to communicate during the trip. A plan for make up time for the father will be made prior to departure. (f) The father may travel without the consent of the mother during his parenting vacation time. He will be required to provide at least 14 days in advance of a trip within Canada and 30 days in advance of a trip outside of Canada the mother with a travel itinerary, copies of return airplane or train tickets, addresses and contact numbers for the duration of the stay and make arrangements (time zones permitting) for the mother and child to communicate during the trip. If required, a plan for make up time for the mother will be made prior to departure.

Communication and Information

(a) All communication between the parties shall be respectful. Neither party shall criticize, demean or make disparaging comments about the other in the child’s presence. (b) The parties shall refrain from discussing with the child, or with a third party in the child’s presence, legal proceedings, or any conflicts between the parties and ensure that all information pertaining to the parties’ separation and divorce, including all personal correspondence or email communications in respect thereof is not accessible to the child. (c) The mother shall advise the father of all appointments with any doctors, teachers or other service providers for the child. She shall keep him updated with their names and contact information. (d) The father may obtain information directly from the child’s doctors, teachers or other service providers. The mother shall execute any authorizations or consents to give effect to this order. (e) 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. Both parties shall be permitted to attend while the child is being treated.

Parenting Time Schedule

(a) The father shall have parenting time with the child as follows:

(i) Starting on November 25, 2022, on alternate weekends from Friday after school, or at 3:30 pm until Monday at the start of school, or at 9:00 am. If the weekend falls where there is a statutory holiday, the father shall return the child to school on Tuesday at the start of school, or at 8:30 am. (ii) Starting on November 23, 2022, each Wednesday, with pickup at the end of school, or at 3:30 pm, until Thursday morning at the start of school, or at 8:30 a.m. (iii) Both parties may attend all school functions regardless of the parenting time schedule. The parties may attend parent-teacher meetings individually or together if both parties consent. Each party will obtain their own school calendar and school notices.

(b) The holiday schedule shall take priority to the regular schedule and will be as follows:

(i) Father’s Day: A final order that if the child is not otherwise with the father on this weekend, she will stay with him on Father’s Day weekend from Saturday at 10:00 am until the start of school on Monday. (ii) Mother’s Day: A final order that if the child is not otherwise with the mother on this weekend, the child will stay with the applicant on Mother’s Day weekend, from Saturday at 10:00 am until the start of school on Monday. (iii) Family Day Weekend: A final order that the child will reside with the mother on Family Day weekend in odd-numbered years and with the father in even-numbered years, from her leaving school on Friday until her return to school Tuesday. (iv) Christmas Break: A final order that the child shall be in the mother’s care from the last day of school to 1:00 pm on December 28 in odd-numbered years and shall be in the care of the father from 1:00 pm on December 28 until the start of school on the January return date. The child shall be in the father’s care from the last day of school to 1:00 pm on December 28 on even numbered years and shall be in the care of the mother from 1:00 pm on December 28 until the start of school on the January return date. The parties may agree to an alternate schedule. (v) March Break: a final order that the child shall be in the father’s care in odd numbered years and in the mother’s care in even numbered years. The parties may agree to split the week midday on Wednesday. (vi) Easter Weekend: a final order that the child shall be in the mother’s care in odd numbered years and in the father’s care in even numbered years. The parties may agree to split the long weekend. (vii) Summer Vacation: Each parent will have two weeks inclusive with the child during her school summer vacation. The weeks may be taken consecutively or non-consecutively during July and August. If mother plans a trip outside of Canada with the child that is longer than her vacation parenting time (up to a maximum of one month), make up time is to be planned for father prior to her departure.

Child Support

(a) Based on an annual imputed income of $110,799.00 the father shall pay child support to the mother of $995.00 each month, starting on March 1, 2020. This is the guidelines table amount for one child. (b) Based on an annual imputed income of $90,394.00, the father shall pay child support to the mother of $837.00 each month, starting on January 1, 2021. This is the guidelines table amount for one child. (c) Based on an annual imputed income of $106,399.00, the father shall pay child support to the mother of $961.00 each month, starting on January 1, 2022. This is the guidelines table amount for one child. (d) The father’s child support arears are fixed at $20,525.00 to date, as calculated in this decision. The father shall pay $10,000.00 towards the support arrears within 45 days. He may pay the balance of the arrears at $200.00 each month, starting December 1, 2022. However, if he is more than 30 days late in making any ongoing or arrears payment, the full amount of arrears then owing shall immediately become due and payable. (e) Section 7 expenses will be shared proportionately by the parties. Based on a finding that the mother’s 2022 income is $45,790.00 and the father’s imputed income is $106,399.00, future s.7 expenses will be paid 30% by the mother and 70% by the father. (f) Nothing in this order precludes the Family Responsibility Office from enforcing arrears from any government source such as income tax or GST/HST refunds, or from any lottery or prize winnings. (g) Support Deduction Order to issue. (h) The father shall provide the mother with complete copies of his income tax returns, including all attachments and schedules, as well as the complete corporate returns of any business he operates, and his Notices of Assessment by June 30th each year, starting in 2023. (i) The balance of the claims made by the parties are dismissed.

[155] If either party believes there is an inputting error in the software calculations, or if there is a mathematical error in this decision, they may serve and file a Form 14B motion setting out the errors by December 1, 2022. The other party will then have until December 6, 2022 to serve and file a written response. This is to be delivered to the trial coordinator’s office.

[156] The mother is the successful party in this case and is entitled to costs. If she chooses to seek costs she must serve and file written costs submissions by December 2, 2022. The father will have until December 9, 2022 to serve and file a written response. The submissions shall not exceed 3 pages, not including any bill of costs or any offer to settle. They are to be either delivered or emailed to the trial coordinator’s office.

Released: November 21, 2022 Signed: Justice D. Szandtner