ONTARIO COURT OF JUSTICE DATE: 2023 06 29 COURT FILE No.: D42377/22

BETWEEN:

DANIEL GENIOLE Applicant

— AND —

THI THUY NGUYEN Respondent

Before Justice Melanie Sager

Heard on May 8-12 and June 13, 2023 Reasons for Judgment released on June 29, 2023

Counsel: Glenda Perry, for the applicant Shelley C. Quinn and Venessa N. Sectakof, for the respondent

Sager, J.:

Introduction

[1] The Applicant (father) and the Respondent (mother) met through friends in October 2018. They lived together for 4 months between January and April 2019. On August 8, 2020, the parties’ daughter Melanie was born.

[2] The father was born and raised in Toronto. He currently lives with his mother, brother and maternal grandparents in the home his grandparents raised his mother. The father left high school without a diploma and began working on and off at the age of 16. He currently works part time at Freshco.

[3] The mother was born in Vietnam and came to Canada on a student visa on October 12, 2017. She has remained in Canada since that time. She studied English as a second language at George Brown College from January to December 2018. She then obtained a certificate in English as a second language from Metro Toronto Language School in March 2020. In September 2021, the mother received a Diploma in the Fundamentals of Hospitality and Tourism Management from the Toronto School of Management.

[4] To support herself, the mother has worked as a waitress both while in school and after completing her studies. She currently works full time as a waitress and is taking online courses to become a licensed real estate agent.

[5] The maternal grandmother lived with the mother and Melanie from Melanie’s birth until February 2022. She was actively involved in the day to day care of Melanie and was responsible for Melanie’s care when the mother was at work. She has a visa that allows her to be in Canada up to 6 months at a time over a period of several years.

[6] Melanie lived with her mother and maternal grandmother from birth until February 24, 2022, when she was ordered by Justice Roselyn Zisman to be placed in the care of her father. Melanie has remained in the primary care of her father since that date and has had regular parenting time with her mother.

The history of the litigation

(i) The events resulting in the temporary without prejudice order of February 24, 2022, made without notice to the mother

[7] The maternal grandmother arrived in Canada from Vietnam on January 29, 2020 after learning her daughter was pregnant. She has a multi-entry visa that allows her to stay in Canada for up to six months. This visa expires on January 22, 2025. When the maternal grandmother was in Canada in 2020, she obtained several extensions to remain in Canada from the Canadian government beyond six months. As a result, she did not have to leave as planned on July 28, 2020 and was able to remain in Canada until March 31, 2022.

[8] The mother, who works full time and relied on her mother for childcare, had to make alternate plans for Melanie’s care once the maternal grandmother left Canada as was required by her visa by March 31, 2022.

[9] The parties discussed three specific options for Melanie’s care while the maternal grandmother is in Vietnam; first was proposed by the mother for the father to live with her and care for Melanie while she was at work. This option would require the father to contribute $500.00 per month towards her rent. The second option, proposed by the father was for Melanie to live with him and his family who would cover her expenses. The mother could visit whenever she wanted and could take Melanie on her days off work. The third option was for Melanie to travel with the maternal mother to Vietnam for approximately three months between February and May 2022.

[10] The father rejected the mother’s proposal that he move in with her and care for Melanie while she is at work and the mother rejected the father’s proposal that Melanie live with him and his family. The mother then unilaterally decided that Melanie would travel to Vietnam with the maternal grandmother and on February 20, 2022 told the father that Melanie would be leaving on February 25, 2022, for approximately 2 to 3 months. She invited the father to spend more time with Melanie before she left and to accompany them to the airport.

[11] The father obtained legal advice and brought an urgent motion without notice to the mother on February 24, 2022, to obtain an order that the child be prohibited from leaving the country and be placed in his care.

[12] The father attended in court on his urgent, ex parte motion on February 24, 2022, before Justice Zisman and obtained a without prejudice order granting him sole decision making responsibility for Melanie who was to be delivered into his care immediately. The without prejudice order prohibited the mother from removing the child from the City of Toronto and specifically provided that her primary residence shall be in Ontario with the father. The mother was ordered to deliver the child’s passport and birth certificate and health card to the father and the parties were ordered to communicate with each other in writing. The motion was adjourned to March 9, 2022.

(ii) The temporary with prejudice order of March 9, 2022

[13] On March 9, 2022, the father’s urgent motion was heard on affidavit evidence from both parties. While the motions judge had several concerns with the mother’s conduct, Justice Zisman was primarily focused on whether the mother was a flight risk. [1]

[14] Justice Zisman concluded that the mother was a serious flight risk as she did not provide proof of the purchase of a two way ticket, Vietnam is not a signatory to the Hague Convention, and the mother had no status in Canada on the date of the motion. The fact that unbeknownst to the father, the mother had obtained Vietnamese citizenship for Melanie, heightened the risk of her removal from Canada.

[15] Justice Zisman questioned the mother’s judgement in terms of her decision to send a young child away from her parents for several months and her willingness to do so without the father’s consent. She said that the mother’s failure to include the father’s name on Melanie’s birth registration and certificate and obtaining a passport for Melanie under false pretenses suggests she does not support or promote a relationship between Melanie and her father.

[16] Justice Zisman was also concerned with the lack of a plan from the mother for Melanie’s care while her mother was in Vietnam. Conversely, Justice Zisman concluded that “there is enough evidence” that the father is “able and willing” to take care of Melanie, that he has appropriate accommodations and that his family can help him.

[17] Justice Zisman maintained the order placing Melanie in her father’s care and noted that several facts were in dispute, specifically how involved the father was in the child’s life. Justice Zisman specifically stated that on a motion she must deal with disputed evidence and that she cannot resolve the “he said, she said” conflictual evidence at this stage of the litigation. That is an issue for the trial judge to resolve.

[18] In maintaining the order made on an urgent without prejudice basis on February 24, 2022, Justice Zisman specifically noted that the mother “is going to have to do a lot of work to convince the court that she is not a flight risk.”

[19] Justice Zisman ordered virtual parenting time for the mother three times per week and noted that supervised parenting time would be considered once the mother delivered up hers and the child’s passports. She therefore ordered that the mother’s parenting time beyond three virtual visits a week shall be at the father’s discretion.

(iii) The mother’s parenting time between March 9, 2022 and trial

[20] The mother began virtual visits with Melanie according to the mother on March 9, 2022 and on March 3, 2022 according to the father. The parties agree that the mother had her first in person visit with Melanie on March 20, 2022 in the father’s home supervised by him for one hour. The parties eventually agreed on two supervised day visits per week. The mother’s supervised parenting time continued until August 21, 2022, when she began having unsupervised visits in the community for 4 hours.

[21] On August 30, 2022, the parties consented to a court order granting the mother unsupervised parenting time on Tuesdays and Sundays from 9:00 a.m. until 2:00 p.m. This arrangement continued until April 2023 when the father agreed to the mother’s requests for overnight parenting time and offered parenting time every weekend from Saturday at 10:00 a.m. to Sunday at 12:00 p.m. in addition to her Tuesday parenting time from 9:00 a.m. until 2:00 p.m.

Orders being requested by the parties

[22] The father asks the court to make the following final orders:

(a) That he be granted decision making responsibility for Melanie who shall have her primary residence with him. He shall only make final decisions after consulting with the mother in writing.

(b) The mother shall have regular parenting time with Melanie every Wednesday from 9:00 a.m. to 6:00 p.m. unless she is in daycare which would adjust the time, and three weekends out of every four from Saturday at 9:00 a.m. until Sunday at 6:00 p.m.

(c) A sharing of all holidays.

(d) A police enforcement order.

(e) The mother shall deposit her passport(s) with the court.

(f) The father may apply for and obtain government issued documents for Melanie without the mother’s consent and that he shall be responsible for holding these documents.

(g) The mother shall be prohibited from removing Melanie from the Greater Toronto Area.

(h) The father shall pay the mother retroactive child support in the amount of $254.00 per month for the period of September 1, 2021 until December 1, 2021, and $266.00 per month for January and February 2022 based on the father’s income in 2021 of $29,848.00 and in 2022 of $31,000.00 and the Child Support Guidelines.

(i) The mother shall pay the father child support commencing March 1, 2022 based on an income of at least $45,000.00 which shall be grossed up for income tax unless the mother demonstrates that she is paying source deductions.

[23] The mother asks the court to make the following final orders:

(a) The parties shall share decision making responsibility for Melanie or in the alternative an order that the mother have sole decision making responsibility after consulting with the father.

(b) Melanie shall have her primary residence with the mother.

(c) The father shall have regular parenting time with Melanie alternate weekends from Friday to Monday and Wednesdays from 4:00 p.m. to 6:00 p.0m.

(d) A sharing of all holidays.

(e) Melanie’s passports and documents be held by the father.

(f) The mother’s passport shall be held by her lawyer until January 1, 2026.

(g) The father shall pay the mother child support in the amount of $273.00 per month commencing January 1, 2021 and up to February 1, 2022 and following Melanie being returned to the mother’s care based on an imputed annual income of $32,000.00 and the Child Support Guidelines.

The issues to be decided by the court

[24] The following issues must be decided by the court:

(a) What decision making responsibility order is in Melanie’s best interests?

(b) What parenting schedule is in Melanie’s best interests?

(c) The father agrees to pay the mother retroactive child support. On what date should the child support commence and on what income should it be calculated?

(d) What amount of child support should the mother be required to pay the father as of March 2022?

(e) Does either party have a responsibility to pay child support prospectively and if so on what amount of income should the child support be calculated?

[25] This trial was heard over six days from May 8-12, and June 13, 2023. On consent, closing submissions were submitted to the court in writing. Both parties provided the court with draft final orders.

[26] Both parties gave their evidence in chief by affidavit as did their collateral witnesses. Both grandmother’s gave evidence as did a friend of the mother’s and her midwife.

Parenting issues: The law

Statutory considerations

[27] Subsection 24(2) of the Children’s Law Reform Act (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.

[28] Subsection 24(3) of the Act sets out a list of factors for the court to consider when determining a child’s best interests.

[29] The court must consider whether there has been family violence as part of the best interests consideration. Family violence is defined in subsections 18(1) and (2) of the Act. Factors related to family violence are outlined in subsection 24(4) of the Act.

[30] 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.

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

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

33. 1 Protection of children from conflict

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

Best interests

[33] The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It “is 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, her needs and the people around her.” Phillips v. Phillips, 2021 ONSC 2480.

[34] The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. Gordon v. Goertz Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child. Young v. Young; E.M.B. v. M.F.B., 2021 ONSC 4264; Dayboll v. Binag, 2022 ONSC 6510.

Parenting time

[35] A starting point to assess a child’s best interests when making a parenting time order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making a parenting time order that his or her caregiver be physically and emotionally safe. I.A. v. M.Z., 2016 ONCJ 615; J.N. v. A.S., 2020 ONSC 5292; A.L.M. v. V.L.S., 2020 ONCJ 502; M.R.-J. v. K.J., 2020 ONCJ 305; Abbas v. Downey, 2020 ONCJ 283; N.D. v. R.K., 2020 ONCJ 266.

[36] The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being.

Analysis of the evidence

[37] At the date of trial Melanie was two years and nine months old. The first year and a half of her life she was in her mother’s primary care. For the last one year and three months she has been in the primary care of her father. For this reason, an analysis of the evidence based on these two periods of time will follow.

A. The first year and a half of Melanie’s life

(i) The uncontested evidence

[38] Melanie lived full time with her mother and maternal grandmother for the first year and a half of her life. Melanie was cared for by both her mother and maternal grandmother and exclusively by her maternal grandmother when her mother was working.

[39] In the first year and a half of her life, Melanie was visited by her father and paternal grandmother in the mother’s home. Melanie also spent time with the father and paternal relatives in his home always accompanied by the mother and often overnight.

[40] In the first year and a half of her life, the mother did not leave Melanie in the care of her father or his relatives. The mother was always present during the father’s or his family’s visits.

[41] Following her birth, Melanie attended regular appointments with her doctor including for her 2 months, 4 months, 6 months, 12 months, 15 months and 18 months well baby care appointments. Melanie’s pediatrician did not identify any concerns regarding Melanie’s growth and development.

[42] The father did not attend any of the well baby care appointments with Melanie and the mother.

[43] The father was not employed for the first year of Melanie’s life. He did collect the Canadian Emergency Relief Benefit for a period during the Covid-19 pandemic. The father did not pay the mother child support for Melanie. The father and his mother purchased items and supplies for the mother and Melanie and delivered them to her home.

[44] The father nor the paternal grandmother reported any concerns regarding the mother’s care of Melanie to anyone including the police or any child welfare agency.

[45] The parties’ main source of communication has been in writing through Facebook Messenger.

(ii) The contested evidence

(a) The mother’s plan for Melanie to travel to Vietnam with the maternal grandmother

[46] To determine if the mother remains a serious flight risk as of the date of trial, a review of the evidence leading up to the urgent motion is necessary.

Events leading up to father’s urgent motion

[47] The mother’s evidence is that when her mother was required to leave Canada to comply with the terms of her entry visa, she asked the father to move in with her for 60 days while her mother was away to look after Melanie while she was at work and contribute $500.00 per month towards the rent. The mother says at first the father agreed to her suggestion that he move in with her for the 60 days but later rejected this idea and offered for Melanie to stay with him and his family while the maternal grandmother is away. The mother rejected the father’s proposal and decided Melanie would go to Vietnam with her grandmother for 2-3 months.

[48] On February 20, 2022 via Facebook Messenger, the mother told the father of her decision for Melanie to travel to Vietnam for 2 to 3 months with the paternal grandmother and said she would be back in Canada in May 2022. The messages exchanged between the parties via Facebook Messenger around this time do not include a message from the father in which he clearly states he is opposed to Melanie travelling to Vietnam with her grandmother. While the father may not have approved of the mother’s decision to send Melanie to Vietnam with the maternal grandmother, he did not express strenuous opposition in written communication between them days before Melanie was to leave Canada with her grandmother.

[49] The father says that on January 17, 2022, while visiting Melanie at the mother’s home, she told him she was considering having Melanie travel with her mother to Vietnam as she could not care for Melanie without the assistance of her mother who had to return to Vietnam. The father says he told the mother he was not comfortable with Melanie travelling to Vietnam and offered to care for Melanie “for 2 to 3 months while her mother was in Vietnam”. He says that the mother said she would speak to her mother and a few days later rejected his proposal. He said the mother continued to ask him to move in with her to help care for Melanie and pay $500.00 in rent but he was not working at the time and would not be able to pay the mother rent.

[50] When the mother made it clear that Melanie was going to Vietnam with her maternal grandmother, the father sought out legal advice and prepared for an urgent motion to restrict the mother from removing Melanie from Ontario.

[51] When the father appeared before the court on an urgent basis without notice to the mother, the following were the facts he relied upon in support of his request for an order that Melanie be placed in his care:

(a) The mother had plans to send Melanie to Vietnam with her maternal grandmother for an unspecified period on February 25, 2022 without his “knowledge or consent”.

(b) The parties first discussed the mother’s plan for Melanie to travel with the maternal grandmother to Vietnam on January 17, 2022. The maternal grandmother, who provided care for Melanie when the mother was at work, had to return to Vietnam for 2 to 3 months. As a result, the mother had to make alternate childcare arrangements. The father offered to care for Melanie in his home rather than her travelling to Vietnam with the maternal grandmother but the mother would not agree.

(c) The father was not shown a plane ticket or an itinerary for Melanie’s travel to Vietnam.

(d) The father told the mother that he objected to Melanie going to Vietnam and since then, the mother has not been allowing him to see Melanie.

(e) The father did not consent to the mother obtaining a passport for Melanie. He does not know how the mother obtained one and suspects she was not truthful with the officials at the passport office.

(f) The father believed the mother had permanent residency status in Canada.

(g) The father was concerned that if the mother knew he had commenced court proceedings either she or her mother would hide Melanie.

(h) The father quit his job after Melanie was born in anticipation of helping care for her.

(i) The father has been actively involved in Melanie’s life including seeing her every weekend and attending doctors’ appointments with her and can provide care for her. He said he was familiar with her needs and schedule and that he has looked after her when she is teething and ill.

(j) The mother began restricting the father’s time with Melanie in the summer of 2021 after he refused to marry her and sponsor her family to come to Canada. She began to impose restrictions on his time with Melanie including that she be present during his visits.

(k) The father had appropriate accommodations for Melanie in his home including her own bedroom.

(l) The father’s mother and grandparents live with him and can assist in caring for Melanie.

(m) The father does not trust the mother given that she has refused to communicate with him, not allowed him to see Melanie, arranged for Melanie to travel to Vietnam without his consent, and obtained a passport for Melanie without his knowledge or consent.

[52] The mother’s affidavit in response to the father’s urgent motion contained the following facts upon which she relied to have Melanie returned to her care:

(a) She has been Melanie’s caregiver since birth and the father has only had parenting time in her presence. He has never cared for Melanie on his own and he therefore could not have the experience caring for Melanie that he claims in his affidavit to have.

(b) While the mother did insist on being present during the father’s parenting time, she never restricted his contact with Melanie or denied same.

(c) The father never attended a doctors’ appointment with her for Melanie.

(d) The father did not quit his job when Melanie was born to help care for her as he was not working at the time.

(e) The father has not been involved in Melanie’s life and has only seen her infrequently. The father had not requested parenting time with Melanie for two months prior to the urgent motion.

(f) The mother first raised with the father the prospect of Melanie travelling to Vietnam with her maternal grandmother in the summer of 2021, not January 2022 as the father claims.

(g) The mother denies ever asking the father to marry or sponsor her.

(h) The mother advised the father of the flight information including the flight time and the fact that a one way ticket had been purchased.

(i) The mother does not have permanent residency in Canada but is in the process of applying for same.

(j) The mother did not include the father’s name on Melanie’s birth certificate because he did not show any interest in being present in the child’s life. Because the father’s name does not appear on the birth certificate, the mother was able to obtain a passport for Melanie without the father’s consent.

[53] The father served and filed a reply to the mother’s affidavit in which he swore the following to be true:

(a) The mother did not comply with Justice Zisman’s order to deliver up to him all of Melanie’s documents including her passport.

(b) The mother asked the paternal grandmother for help in completing the application for Melanie’s birth certificate in August 2020 and the application at that time included all the father’s information.

(c) The father suspects that the mother secretly changed the application for Melanie’s birth certificate to remove his name as her father and register Melanie’s name differently from what they had agreed upon.

(d) Melanie’s birth certificate and health card have different names for Melanie and not the name they agreed to following her birth.

(e) The father did not know that Melanie was a citizen of Vietnam and he worries that she can get a Vietnamese passport for Melanie if she has not already done so.

(f) The date of registration on Melanie’s birth certificate caused the father to believe that the mother had been secretly planning for some time to remove Melanie to Vietnam.

(g) With this additional new information the father is even more concerned that the mother will take Melanie to Vietnam or disappear with her.

(h) Since Melanie was delivered into his care, the father has been her primary caregiver with help from his family.

(i) The father has hundreds of messages between the parties in which he asks to see Melanie and the mother refuses the request or unilaterally changes the plans.

(j) The father admits that he had not cared for Melanie on his own prior to February 24, 2020 as the mother would not allow it.

(k) The father never paid the mother child support as he was concerned it would go to drug use as the mother had posted on Facebook a picture of her holding a pill and wrote, “at least these drugs don’t disappoint” [6]. He also said she used cocaine during their relationship before her pregnancy and “took some kinds of pills”.

What did the trial evidence disclose about the accuracy of the parties’ respective evidence on the urgent motion?

Melanie’s birth certificates and passports

[54] The mother’s evidence at trial regarding how she obtained Melanie’s birth registration, birth certificate and passport is much more expansive then was heard by the motions judge on the urgent motion [7]. This is understandable given that the turn around time from the date of the ex parte order and the return of the urgent motion after notice was given to the mother was 13 days.

[55] The mother explains that she initially attempted to obtain a birth certificate in August 2020, that included the name of father on it. She received a letter from the provincial government on two occasions, September 12, 2020 and December 6, 2020, advising her that she must register Melanie’s birth before she can obtain a birth certificate. As she had already registered Melanie’s birth, the mother sent the second letter to the paternal grandmother on December 23, 2020, seeking her assistance.

[56] In early 2021 the mother began enquiring with Service Ontario as to problem causing the delay in her obtaining Melanie’s birth certificate. Her evidence is that Melanie’s name was “misregistered” and she would have to re-register online. The mother completed the reregistration package and forwarded it to Service Ontario on January 8, 2021. It was around this time that the mother says she was upset with the father’s lack of involvement in Melanie’s life and decided not to name him on the birth registration and birth certificate.

[57] The mother explains the reason for Melanie’s name appearing differently on various government documents including her birth certificate and health card is due to her mistake of registering Melanie’s birth name with her surname, “Nguyen” appearing first as it does in Vietnam. When she received the birth registration and realized she had registered Melanie’s name as “Nguyen Thi Melanie”, with her last name listed first, she would have to change it to “Melanie Thi Nguyen”, which she ultimately did in March 2021.

[58] The mother denies that her failure to include the father’s identity on Melanie’s birth certificate was part of an elaborate plan to secretly remove Melanie from Canada.

[59] With respect to Melanie’s Vietnamese citizenship, the mother’s evidence is that she applied for a Vietnamese birth certificate and passport at the same time in December 2021. She says she now understands that she should have asked the father to sign the Applications before applying for Melanie’s Vietnamese citizenship but does not understand why the father would be “shocked” and “upset” by her obtaining Vietnamese citizenship for Melanie, which she is automatically entitled to because of the mother’s Vietnamese citizenship.

[60] The mother’s evidence is that she obtained Vietnamese citizenship for Melanie simply because she is entitled to it and for no other or sinister reason.

[61] The mother now says that she now understands her failure to include the father’s name and information on Melanie’s identification documents was wrong.

[62] The father says that when he attended at the mother’s home with his mother and the police to bring Melanie into his care, the mother did not deliver up hers and Melanie’s passports as ordered by the motions judge. The mother says everything happened so quickly and the police did not ask for her passport. She did not have time to read the court documents given what was taking place.

[63] The mother’s evidence is that immediately after the return of the motion on March 9, 2022, she delivered her passport and Melanie’s two passports to her previous counsel. The passports were delivered to the mother’s current counsel and have been held by here since April 26, 2022. The court did not hear evidence explaining why the passports were not delivered to counsel for the father as ordered by Justice Zisman.

[64] At the commencement of the mother’s evidence at trial, she provided counsel for the father with the original copies of Melanie’s Canadian and Vietnamese birth certificates. The Vietnamese birth certificate was translated by the Vietnamese interpreter who was present at trial.

[65] The mother provided no explanation as to why she did not deliver up Melanie’s birth certificates to counsel for the father pursuant to Justice Zisman’s order of March 9, 2022 which provides that the mother shall “deliver all original Canadian and Vietnamese passports and citizenship documents” for Melanie to her counsel who shall “arrange for the passports and citizenship documents to be delivered to Glenda Perry, counsel for the Applicant father for her safekeeping pending further order of this court.”

The reason for Melanie’s one way ticket to Vietnam

[66] The mother’s evidence is that her mother was required to leave Canada and remain in Vietnam for at least 60 days. The plan was for her mother to stay in Vietnam for 2 to 3 months and she would purchase a return ticket for her and Melanie closer to the return date. She said this would allow her mother flexibility in choosing the return date after she completed the mandatory 60 day stay in Vietnam.

Did the mother devise a plan to remove Melanie from Canada without the father’s knowledge or consent?

[67] While the mother’s decision to exclude the father’s name from the birth registration and then the birth certificate was very poor judgment, I do not believe that it was done as part of a surreptitious plot to remove Melanie from Canada without the father’s “knowledge or consent”. I will explain the reasons for this conclusion below.

[68] The evidence as set out above makes it clear that the mother told the father that she was sending Melanie to Vietnam with her mother and that she did not request the father’s consent to do so. It is also clear that prior to bringing his urgent motion, the father did not unequivocally tell the mother in writing that he objected to her plan. The father was not entirely truthful in his affidavit sworn February 24, 2022, in support of his urgent without notice motion when he swore that the mother’s plan to send Melanie to Vietnam with her grandmother “was done without my knowledge or consent”.

[69] I find that the mother’s plan, although ill advised, was not done surreptitiously for the following reasons:

(a) At trial the father admitted that the mother raised the issue of Melanie travelling to Vietnam in the summer of 2021 but that he did not take it seriously. This contradicts the affidavit he relied upon on his urgent motion in which he says the mother first raised the prospect of Melanie travelling to Vietnam in January 2022.

(b) The paternal grandmother gave evidence that on August 1, 2021, she told the mother that Melanie should stay with them at their home while the maternal grandmother is in Vietnam.

(c) The parties were discussing via Facebook Messenger the various options for Melanie’s care while the maternal grandmother was in Vietnam between mid January and mid February 2022.

(d) As evidenced by the parties’ messages on Facebook Messenger, the mother notified the father of the date of Melanie’s departure in advance, asked him to spend more time with Melanie before she left and invited him to go to the airport with her to see Melanie off. The father’s response on Messenger was not an unequivocal, “no” to the travel. Rather he said, “and there is no chance for her to stay?” to which the mother responded, “tickets already bought” and “she will be back on[sic] May”. The father’s response to the mother’s invitation to go with Melanie to the airport was, “so I will probably never se[sic] ever again after Saturday” to which the mother responded, “She will be back on[sic] May like I said”.

Conclusion regarding the mother’s plan to send Melanie to Vietnam with the maternal grandmother for 2 to 3 months.

[70] I reject the father’s argument that the mother was engaged in a secret plan to obtain government issued documents for Melanie for the purpose of assisting her in removing Melanie from Canada without the father’s knowledge or consent. I accept the mother’s explanation as to the delay in obtaining Melanie’s birth certificate, the reason why she had to change Melanie’s name as registered following her birth. The court has no reason not to accept the mother’s explanation for excluding the father’s information from Melanie’s birth certificate although it was wrong for her to do so.

[71] I find that the mother obtaining Vietnamese citizenship for Melanie, something she is entitled to because her mother is Vietnamese, is no cause for concern for the court.

[72] I find that the mother’s plan to send Melanie to Vietnam with the paternal grandmother for 2 to 3 months was ill thought out and demonstrates very poor judgment. She obtained government issued documents for Melanie without the father’s consent by deleting his name from Melanie’s birth registration. This allowed her to obtain a passport for Melanie without the father’s knowledge or consent.

[73] The mother’s behaviour was immature and extremely inappropriate. Her choices combined with her decision to purchase a one way ticket for Melanie to Vietnam understandably was cause for concern for the motions judge. Her conduct resulted in Melanie being placed in the father’s care. I am not certain the mother understands this nor has she taken much responsibility for her actions and how what she did and did not do contributed to the motions judge’s concerns and the ultimate order placing Melanie in the father’s care. Nevertheless, the evidence does not support a conclusion that the mother’s plan to send Melanie to Vietnam for 2 to 3 months was done surreptitiously without advising the father.

[74] The mother has suffered tremendously because of her choices. The court does not have to continue to punish the mother or Melanie for her choices. The mother has arguably been punished enough. The court must decide what is in Melanie’s best interests going forward.

(b) Does the evidence at trial support a finding that the mother did not promote a relationship between Melanie and her father prior to February 24, 2022?

[75] The father’s evidence at trial on this issue is confusing. He says that the mother has restricted his parenting time and interfered in his relationship with Melanie. He says the mother does not respect him as the child’s father and treats him like her property. He says when she is upset with him, she blocks him on Facebook Messenger leaving him no ability to communicate with her.

[76] The mother denies blocking the father on Facebook Messenger. She says she has never denied the father parenting time and in fact she encouraged him to spend more time with Melanie then he did. She even spent overnights at the father’s home so that he could have extended visits with Melanie. She does admit that she did not leave Melanie alone with the father and that this was wrong. She was present during all the father’s visits whether at her home, his home or in the community.

[77] The mother’s evidence is that the paternal grandmother showed more of an interest in spending time with Melanie then the father. The mother reviewed her Facebook Messenger account and provided the court with every single date she says the father and/or the paternal grandmother visited Melanie since she was born. The list of the father’s visits, which include dates when the mother brought Melanie to the father’s home for overnight visits, is not long. The mother cites 4 non consecutive months since Melanie’s birth during which the father did not visit Melanie at all. According to the mother’s evidence, the paternal grandmother visited Melanie in her home much more than the father.

[78] The father, who acknowledges that the parties communicated almost exclusively through Facebook Messenger, said the mother’s list of dates he visited Melanie is incomplete yet he provided no documentary evidence to corroborate his claim that he visited Melanie more then she says he did. He said that some of his visits at the mother’s home were unannounced and therefore not referred to by either of them in their Facebook Messenger accounts. Even if he did see Melanie on additional dates that were not evidenced in writing via Facebook Messenger, it would not amount to the level of involvement the father claimed in his affidavit sworn February 24, 2022.

[79] The difficulty with the father’s evidence on this issue is that if his time with Melanie was as restricted as he claimed at the time of his urgent motion, how would he have been so well situated to care for her full time in February 2022? His evidence on the urgent motion was,

“I have always been familiar with Melanie’s personal needs, such as her sleep schedule; the formula; types of bottles; the kind of diapers and wipes she used. I am a very hands on parent. I feed her; change her; dress her; bathe her; play with her; I put her to bed. I have looked after Melanie when she had issues such as teething, diarrhea, vomiting.”

[80] It is also noteworthy that both the father and the paternal grandmother gave evidence that Melanie’s transition into their home in February 2022 was seamless because she knew them well and was familiar with them as she had spent so much time with them in their home. They both said she did not display behaviour that suggested she was having difficulty with the significant change in her life. This evidence could not be accurate if the mother had been restricting the father’s parenting time to the extent he claims both on his urgent motion and at trial.

[81] It is difficult to reconcile the father’s claims to have been denied meaningful parenting time but to have acquired substantial childcare skills and an intimate knowledge of Melanie’s needs.

[82] It is also difficult to reconcile the father’s claims on the urgent motion that he had been denied meaningful parenting time with his evidence at trial that the mother never refused a request from him to visit Melanie at her home and that she was always “open and welcoming” and often encouraged him via Facebook Messenger to spend time with Melanie. His evidence at trial contradicts at least the tone of his affidavit in support of his urgent motion with respect to the restrictions he claimed the mother was imposing on his parenting time.

[83] The court was provided with evidence of many Facebook Messenger conversations between the parties which demonstrate that the mother cooperated to facilitate the father’s parenting time with Melanie but always in her presence. The father gave evidence at the urgent motion and at trial that he had “hundreds” of messages where the mother denied him parenting time but did not produce a single message to substantiate his claim. Not one.

[84] The father’s evidence caused the motions Judge to be concerned that the mother was not supportive of Melanie’s relationship with her father and the father allowed the motions judge to be misled even though he knew this not to be true as indicated by his evidence at trial.

[85] The father acknowledged at trial that prior to February 24, 2022, he had never exercised parenting time with Melanie apart from the mother because she would not allow it. In his affidavit in support of his urgent motion, he did not make it clear to the Motions Judge that he had never exercised parenting time without the mother present [8]. He alleged that it was only six months prior that the mother’s attitude towards him had changed when he refused to marry her and sponsor her family to come to Canada. He deposed, “this triggered her limiting my time with Melanie and impose conditions that she be present”.

[86] The father misled the motions Judge on this issue. Firstly, he did not clearly delineate for the motions judge that his issue was with the mother insisting on being present during his parenting time, not that he was being denied parenting time. Secondly, in his affidavit sworn in support of his urgent motion, he said the mother had recently begun imposing restrictions on his parenting time, including insisting on being present when this was not accurate as the mother had always been present during his parenting time.

[87] The father’s evidence at trial did not include a single written message from him in which he complains to the mother about being denied parenting time away from her. In fact in his affidavit sworn on February 24, 2022 in support of the urgent motion, he deposed that he “didn’t agree” with the restrictions the mother put on his parenting time “but I didn’t want to argue with her.” He did not protest the mother’s insistence on being present during his parenting time.

[88] The father did not start court proceedings to obtain a court order for parenting time nor did he make any enquiries about pursuing such a court order before February 2022. There was no written communication between the parties put to the court in which the father told the mother that he would commence court proceedings if she did not allow him parenting time without her being present.

[89] Not being permitted parenting time without the mother being present is not the same thing as being denied parenting time or being restricted to minimal or unmeaningful parenting time. The father led the motions judge to believe on his urgent motion that he was being denied meaningful parenting time with Melanie when this was not the case.

[90] It is very difficult for the court to accept the father’s claims that the mother denied him parenting time or did not facilitate parenting time when he requested. There is no documentary evidence to support these claims despite the father stating in his evidence on the urgent motion over a year ago that he has “hundreds of messages” between the parties when he asked to see Melanie and the mother refused. He repeated this claim in his trial evidence but when asked could not produce a single message to support his claim. To the contrary, the father gave evidence that the mother always facilitated parenting time when he asked to see Melanie.

Conclusions as to whether the mother supported and promoted Melanie’s relationship with her father prior to February 2022

[91] The father gave evidence that the mother always facilitated his requests to see Melanie and even encouraged him to see her more. He agrees that she never refused a request by him to see Melanie and was always open and welcoming.

[92] The very fact that both the father and the paternal grandmother described a close and loving bond with Melanie before she came to live with them which resulted in a seamless transition for Melanie from her mother’s home to their home contradicts the father’s claim that the mother was denying him meaningful parenting time with Melanie.

[93] The evidence demonstrates that the mother was at most overprotective and would not leave Melanie alone in the father’s care in the first year and a half of her life. The evidence does not support the father’s claim that the mother was denying him meaningful parenting time or negatively impacting his relationship with Melanie by restricting his parenting time. His own evidence is that he was a very involved father with intimate knowledge and understanding of his daughter’s needs which contradicts his claim that his parenting time was severely restricted.

[94] I find that the mother improperly denied the father parenting time without her being present but she did not outright deny the father parenting time. The mother facilitated parenting time regularly and at the father’s and paternal grandmother’s request. Her refusal to leave Melanie alone in the father’s care in the first year and a half of her life may have been unreasonable or overprotective but it does provide a basis for a finding that the mother minimized the child’s relationship with the father or did not promote it. Furthermore, the father did not complain to the mother, at least in writing, about the restrictions she put on his parenting time or commence court proceedings to obtain a regular parenting schedule without restrictions.

(c) Is the mother currently a flight risk?

[95] Given that the court has found that the mother did not obtain Melanie’s government issued documents without identifying the name of the father as part of a secret plot to remove Melanie from this jurisdiction, has the mother adequately demonstrated that she is no longer a serious flight risk or does a serious risk remain that Melanie will be removed from this jurisdiction without the father’s consent?

[96] For the following reasons, I find that the mother is not a flight risk and Melanie is not at risk of being removed from the jurisdiction without the father’s knowledge or consent:

(a) The mother has been living in Canada continuously since May 2017 and wishes to reside here permanently.

(b) Prior to trial the mother had a temporary residency permit and a temporary work permit.

(c) By the completion of trial the mother had been approved in principle for permanent residency in Canada based on humanitarian and compassionate grounds and now only must complete the Government of Canada’s requirements to finalize her status.

(d) The father’s evidence that the mother asked him to marry her so she can remain in Canada supports the mother’s claim that she wishes to reside permanently in Canada.

(e) The mother is making a life for herself and Melanie in Canada.

(f) The mother supports Melanie having a relationship with her father, who did not have his father in his life, and has made efforts to foster one. She said it is important for Melanie to have her father in her life and that she does not want her to grow up without him.

(g) The maternal grandmother gave evidence that it is her daughter likes living in Toronto and it is her plan to remain in Canada and raise her daughter here so that she can enjoy many of the benefits of Canada including universal education and health care.

(h) The father gave evidence that he was less concerned about the risk of Melanie being removed from Canada once all her government issued documentation was changed to include his information in August 2022 and she is registered with passport control. For this reason, he began facilitating unsupervised parenting time in August 2022 as he knew it was much less likely that the mother would be able to remove Melanie from Canada without his knowledge.

(i) The father’s own evidence is that he no longer considers the mother to be a flight risk. When he questioned about different parenting scenarios that could be implemented following the trial such as an equal parenting regime, the father did not cite the mother being a flight risk as a reason why a shared parenting regime would not be in Melanie’s best interests.

(j) The father began facilitating overnight parenting time by the mother to Melanie in April 2023. This suggests he is now even less concerned about the risk of the mother attempting to remove Melanie from Canada.

(k) If Melanie is returned to her primary care, the mother is agreeable to the father holding Melanie’s Canadian and Vietnamese passports as well as all other government issued documents in Melanie’s name other than her OHIP card. [9]

Conclusion as to whether the mother remains a flight risk

[97] The evidence reveals that the mother incorrectly thought she had the right to make major decisions regarding Melanie without the father’s consent. The evidence does not support a conclusion that the mother was trying to remove Melanie or flee with her from Canada without the father’s knowledge or that the removal would be permanent.

[98] Whether it was appropriate for the mother to send Melanie to Vietnam with the maternal grandmother without first obtaining the father’s consent is a separate issue from whether she continues to be a serious flight risk.

[99] For the reasons set out above, the court finds that the mother is not a flight risk and there is little to no risk that she will attempt to remove Melanie from this jurisdiction without the father’s knowledge or consent.

[100] While the weight of the evidence supports the conclusion that the mother is no longer a flight risk, her failure to comply with Justice Zisman’s order to deliver up Melanie’s passports and citizenship documents will not be ignored. Her conduct in this regard will result in orders that provide additional assurance that even though the mother is not currently a flight risk, should that change, she will not be able to remove Melanie from this jurisdiction without the father’s consent or a court order.

(d) Other issues with the father’s evidence on the urgent motion that impacts his credibility at trial

[101] The father’s affidavit sworn February 24, 2022 upon which he relied on his urgent motion contain several inaccuracies, some of significance, others not as much. They include the following:

(a) The father deposed that the mother first raised the prospect of Melanie going to Vietnam, with her grandmother on January 17, 2022 but at trial he admitted that the topic was raised with him in the summer of 2021. In addition, the paternal grandmother said she told the mother on August 1, 2021 that Melanie should stay with their family when the maternal grandmother returns to Vietnam which demonstrates that the issue came up long before January 2022.

(b) The father’s evidence on the urgent motion was that the mother told him she was getting a passport photo for Melanie on October 26, 2021 but just for “identification” purposes. The mother sent him a photo of Melanie’s passport photo on November 16, 2021 to which he responded, “oh god that face”. His claims that he did not know the mother obtained a Canadian passport for Melanie are very difficult to believe given the evidence.

(c) For a second time in his affidavit sworn February 24, 2022 he states that the mother told him she was obtaining a passport photograph of Melanie but “didn’t tell me about any plans to travel with[sic] Vietnam” which has proven to be untrue.

(d) The father deposed that he quit his job after Melanie was born “in order to have time to look after Melanie” but gave evidence at trial that he did not work between December 2019 and September 2021(Melanie was born on August 8, 2020).

(e) Contrary to his affidavit sworn February 24, 2022, Melanie did not have her own bedroom at his house. In fact, Melanie moved into the unfinished basement in the father’s grandparents’ home which he shared with his mother and which he described at trial as “inappropriate” accommodations for Melanie.

(f) The father’s February 24, 2022 affidavit incorrectly states that he attended doctors’ appointments with Melanie and the mother for “her checkups and her needles”. The father clarified at trial that this was not accurate and he in fact did not attend any of the child’s doctors’ appointments in the first year and a half of her life and did not meet Melanie’s doctor until June 2022.

(g) The father’s claims of the mother using drugs, which was repeated at trial, was completely unsupported by any reliable or persuasive evidence and will be addressed further below in this judgment.

(h) The father swore in his reply affidavit dated March 7, 2020 that he has been Melanie’s primary caregiver since she was placed in his care on February 24, 2020. For reasons set out below, I find that the father has not been and is not Melanie’s primary caregiver.

[102] As credibility is an issue given the various competing claims by the parties, it is important to set out the inaccurate evidence provided by the father on his urgent motion. A party moving on an ex parte basis has a duty to provide scrupulously accurate evidence given that the motions judge is being asked to make orders in the absence of the other party. The litigant moving on an ex parte basis is held to a very high standard in terms of providing all the relevant evidence; not just the relevant evidence that assists their case.

Father’s claims on the urgent motion and at trial of drug use by the mother

[103] Both the father and the paternal grandmother gave evidence of concerns that the mother uses drugs. The father first raised this in his reply affidavit on his urgent motion in February 2020. He says that he did not pay the mother child support as he was concerned the money “could go to drug use”. He referenced a posting on the mother’s Facebook page of her holding a white tablet and commenting, “This drug never make me disappointed”. He repeated these exact same concerns in his evidence at trial but provided no new additional evidence to support his concern.

[104] The father was asked if he had any other evidence to support his concerns around drug use by the mother other than the single posting by the mother on Facebook? He said the mother sent him a video prior to her pregnancy of her using cocaine and he referenced marijuana use in a very vague manner without specifics. Other than the video and the photo, the father says he has no other evidence to support his concerns.

[105] The paternal grandmother gave evidence that the mother used cocaine in her home before she was pregnant. In her evidence she referenced the mother’s “drug habit” as the reason why her son did not provide the mother with child support.

[106] The mother says she has never used cocaine and that the photo of the little white pill was an antibiotic her mother brought from Vietnam which she took after she gave birth by cesarian section. The mother provided a picture of the box from which the pill was taken.

[107] The father’s and his mother’s evidence on this issue was hypocritical given the father’s evidence that he previously smoked “a gram every couple of days” of marijuana until he cut back to once every week or two. He also confirms his mother smokes marijuana and they use to do so together but have “cut back”.

[108] I find the father’s and paternal grandmother’s evidence of drug use by the mother to be disingenuous. There is absolutely no evidence to support the father’s concerns. Neither the father nor his mother ever called a children’s aid society out of concern that the mother was using drugs and putting the child at risk. On the return of the urgent motion on March 9, 2022, the father’s lawyer even said that the father did not come to court because the mother uses drugs and that this is a “peripheral issue that’s not important for today” as it was only raised in response to the mother’s evidence that the father did not pay child support. If he was truly concerned about drug use impacting the mother’s care of Melanie, he should have done something about it long before February 2022.

[109] The evidence given by the father and his mother of their apparent concerns of drug use by the mother is a specious claim that should never have been advanced by the father. His willingness to try to make this an issue on the urgent motion and at trial when it is clearly not an issue, says a lot about his character and credibility then it says about the mother.

[110] There are consequences for making unfounded allegations in family litigation. The father’s willingness to raise such a serious concern without any real evidence brings his credibility into serious question. His mother’s credibility is also severely damaged. It was not enough for the paternal grandmother to raise a concern that the mother may use drugs when in a caregiving role, she went further and used the words “drug habit” when giving evidence. She was willing to make a very serious allegation about the mother with absolutely no reliable evidence to support her claims. Her evidence was a transparent effort to bolster her son’s evidence on this issue. Her willingness to make very serious allegations against the mother without any supporting evidence comes at a cost to her credibility.

[111] The father’s and his mother’s willingness to at best grossly exaggerate and at worse fabricate a concern that the mother abuses drugs will negatively impact the court’s assessment of the father’s evidence. When the court is faced with having to decide whose version of events to accept, the court will be mindful of the fact that the father was willing to grossly exaggerate and possibly fabricate allegations at other times, including on his urgent ex parte motion.

(e) The mother’s relationship with the paternal grandmother and the impact it had on the parties’ relationship prior to February 24, 2022

[112] On August 1, 2021, after spending the weekend at the father’s home with Melanie, the paternal grandmother accompanied the mother and Melanie home on public transit. When walking from the bus to the mother’s home, it is not disputed that the paternal grandmother told the mother that she wanted Melanie to be able to spend time at their home without her present. She said that Melanie should stay at their home while the maternal grandmother is in Vietnam. The paternal grandmother told the mother that the father has rights to have Melanie in his care at least every other weekend and that in Canada even criminals are allowed to be alone with their children.

[113] The version of what occurred on August 1, 2021 as told by the mother and the paternal grandmother only differs in that the mother says that the paternal grandmother told her if she did not agree to her demands, they would take her to court and take Melanie away from her. The paternal grandmother denies making this statement and said she only mentioned “visitation”.

[114] In a conversation the parties had via Messenger in January 2022, the father tells the mother that he spoke to his mother about the threats and says that she understands and apologizes for the misunderstanding. He writes that his mother did not mean that she would take Melanie away from her and that she would never want to do that. It is noteworthy that the father’s response was to apologize for his mother and try to smooth things over, not to complain about the mother’s refusal to let him have parenting time alone with Melanie.

[115] At trial the mother produced written messages to the father, her friend and the paternal great grandmother in which she references the threats made by the paternal grandmother. In these messages the mother specifically references the paternal grandmother’s threats to take Melanie away from her.

[116] There is an evidentiary basis for the court to conclude that the paternal grandmother did in fact threaten the mother that she will seek primary care of Melanie if the mother does not allow her to spend time with the father in her home without the mother present. The messages filed by the mother are persuasive.

Findings regarding the evidence for the period of Melanie’s birth to February 24, 2022

[117] Based on the review of the evidence as set out above, I make the following findings:

(a) The father was not denied parenting time by the mother during this period. He was denied parenting time away from the mother.

(b) The mother cooperated to arrange the father’s parenting time at his request.

(c) The father never strenuously complained to the mother about her being present during his parenting time. When the paternal grandmother mother voiced her concerns about this with the mother, the father apologized for his mother’s conduct.

(d) The mother did not impede the father’s relationship with Melanie during this period, rather she supported it to the extent that she encouraged the father to have regular contact with Melanie, she never denied a request from him to see his daughter and she welcomed him into her home. However the mother did all of this on her term that she be present during his parenting time.

(e) The father was not concerned about the mother’s care of Melanie during this period.

(f) The mother’s decision to register Melanie’s birth and obtain a birth certificate without including the father’s identity demonstrates extraordinarily bad judgment and immaturity but was not done as part of a plot to remove Melanie from this jurisdiction without the father’s knowledge.

(g) The mother’s willingness to obtain Vietnamese citizenship for Melanie without at least advising the father also demonstrates poor judgement on her part.

(h) The mother made an enormous mistake believing she could send Melanie to Vietnam for 2 to 3 months without the father’s consent or that being away from her parents for that long at such a young age was in Melanie’s best interests.

(i) The mother’s conduct and choices will impact the terms of the final order.

(j) The mother never intended to “abduct” Melanie or remove her from the father’s life permanently.

(k) The mother is not a flight risk.

(l) The mother wishes to live permanently in Canada.

(m) There is no reliable evidence to suggest the mother abuses or misuses illicit drugs.

(n) The paternal grandmother threatened to commence court proceedings and attempt to obtain primary care of Melanie if the mother did not allow Melanie to start spending time in the paternal family’s home without her being present.

B. The evidence for the period of February 24, 2022 to trial

i. The uncontested evidence

[118] After the motions judge ordered Melanie to be delivered into the father’s care and that he has decision making responsibility for her, there are several relevant facts not in dispute. They are as follows:

(a) The mother did not have any in person parenting time with Melanie until March 20, 2022, when she had her first one hour visit supervised by the father.

(b) Prior to the first in person parenting time on March 20, 2022, the mother had frequent video calls with Melanie.

(c) By August 2022, the father had obtained all new government issued identification for Melanie with the father’s information included and the full name the parties had previously agreed to for Melanie.

(d) The mother’s visits with Melanie were supervised by the father or his family for 6 months until August 21, 2022, when she had her first unsupervised visit in the community for 4 hours. The parties cooperated to arrange two weekly unsupervised visits for approximately 4 hours each.

(e) Commencing in September 2022, the parties agreed that the mother would have unsupervised parenting time on Tuesdays and Sundays from 9:00 a.m. to 2:00 p.m.

(f) The mother requested overnight parenting time with Melanie as of February 2023 through counsel. The father required a photograph of Melanie’s bed before agreeing to mother having overnight parenting time.

(g) The mother did not commence overnight parenting time with Melanie until April 2023.

(h) Melanie was diagnosed to be on the Autism spectrum as of March 2023.

(i) After being diagnosed with Autism, Melanie began receiving weekly speech therapy.

(j) The mother has taken Melanie to some of her speech therapy sessions during her parenting time.

(k) The parties have attended doctors’ appointments for Melanie together and with the paternal grandmother.

(l) The mother and father have socialized together with Melanie on a few occasions.

(m) The mother works full time as a waitress.

(n) The father works Thursday to Sunday at Freshco from 10:30 p.m. to 7:30 a.m.

(o) The mother was exercising parenting time every Tuesday and Saturday from 9:00 a.m. to 2:00 p.m. until April 2023 when the parties agreed to extend the Saturday parenting time until Sunday at 12 p.m.

(p) The mother’s lawyer is holding the mother’s and Melanie’s passports and did not deliver them to the father’s lawyer as ordered by Justice Zisman.

(q) The mother did not deliver up Melanie’s birth certificates to the father’s lawyer as ordered by Justice Zisman

ii. The contested evidence

[119] The disputed evidence for this period centres around the following issues:

(a) The quality of the mother’s parenting time and whether she has missed many visits or been late excessively.

(b) Who is Melanie’s primary caregiver in the father’s home?

(c) Whose prospective plan for Melanie’s care best meets her emotional, physical and psychological needs?

(a) The mother’s parenting time

[120] The father’s evidence is that after Melanie was ordered into his care, he “remained concerned about the risk of abduction”. He said that he immediately provided the mother with updates as to how Melanie was doing and he tried to set up video calls right away but that the mother had blocked him on Facebook Messenger. He said the first video call occurred on March 3, 2022.

[121] The father did not immediately try to arrange in person parenting time because he said he was taking time to “calm down” after the transition of Melanie from the mother’s care to his care. As a result, Melanie did not see her mother in person between February 24, 2022 and March 20, 2022.

[122] The father says that the mother did not attend for parenting time as often as he offered and she “has often been late; doesn’t show up; cancels for reasons such as headaches or sleeping in”. The father also says that during supervised visits, the mother would “complain she was too tired; ask to lay down in the back room; ask for Advil as she said that she had head aches; lie down; be on her phone constantly; go out for vapes.”

[123] After the parties agreed to a court order on June 7, 2022, providing the mother with two specified supervised visits per week, the father says the mother was “usually late”. He also says that the mother deferred to him and the paternal grandmother to provide care for Melanie and that she “spends a lot of time on her phone”. He also said that when Melanie would go to her mother to play, Melanie was told to go see her father as “mommy is too tired to play”.

[124] The mother’s two supervised visits per week continued until the end of August 2022 when the father agreed that the mother could exercise unsupervised parenting time.

[125] The father’s evidence is that after the visits became unsupervised, the mother attended to pick up Melanie unprepared without a stroller, rain cover or extra blankets when it was cold. He also says that the mother forgets to return items he sent with Melanie and that Melanie is “often” returned with a “soaked diaper”.

[126] The mother’s evidence is that the “bad mother” narrative adopted by the father and paternal grandmother is simply untrue. The mother and father live in different ends of the city and the mother relies on public transportation where there are delays which she says sometimes results in her being late. She takes at least one bus, sometimes two and a subway to get from her home to the father’s home. She says she asked the father, who drives, to help with the transportation but he refused. The mother says that she always lets the father know if she is running late and the reason for the delay.

[127] The mother says that her time with Melanie is so limited and precious that she gives Melanie her full attention and only uses her phone to take photographs and videos. She says she has her own stroller which she began bringing with her on visits as of August 2022 when her parenting time became unsupervised. She says when she has forgotten to return items to the father’s home she does so on the very next visit.

[128] The mother says that Melanie was only returned to her father in a wet diaper on one occasion due to the long commute home during which Melanie wet herself.

[129] The father provided a chart which he says details the mother’s parenting time from March 20, 2022 to January 31, 2023. At trial the father could not find support in his chart for his claims that the mother cancelled or missed many visits. When asked to explain the discrepancy between his oral evidence and his chart, the father first said the chart does not include cancellations. When it was pointed out to him that his chart shows a cancellation on September 20, 2022, he said that he had not finished his chart and that he is still working on it.

[130] I reject the father’s evidence that the mother has cancelled or missed a lot of her scheduled parenting time. His contradictions in his own evidence bring the veracity of his claims in this regard into question as does his propensity to be loose with the truth when he swore his affidavit in support of the urgent motion.

[131] The mother’s evidence including her own chart of when her visits occurred is more reliable as she kept contemporaneous notes of her visits and she did not contradict herself in cross examination. She also provided reasonable explanations for and responses to the father’s complaints and concerns.

Analysis of the evidence regarding mother’s parenting time post February 24, 2022

[132] On February 24, 2022, when Melanie was ordered into the care of her father she was a year and a half old. The mother had been Melanie’s caregiver since birth and the father had never once complained about the quality of care the mother had provided.

[133] It was poor judgment on the part of the father to deny Melanie in person parenting time with her mother for almost a full month after the order of February 24, 2022. His explanation that he needed time to “calm down” before allowing Melanie to see her mother in person was selfish and is an example of his putting his needs before his daughter’s.

[134] The father’s poor judgment continued as he required the mother, who had been Melanie’s primary caregiver since birth, to exercise parenting time supervised by him or his mother until August 2022, six months after Melanie was ordered into the father’s care. The mother had not attempted to abduct Melanie and he knew that. She made plans with notice to the father, albeit without his formal consent, for Melanie to travel to Vietnam with her maternal grandmother for two to three months because she was losing her childcare. That travel did not take place. The mother’s and Melanie’s passport(s) have been with her lawyer since approximately March 9, 2022. It was entirely unreasonable for the father to require the mother to exercise parenting time supervised by him or his family for six months.

[135] The father’s poor judgment did not end once the mother began exercising unsupervised parenting time. At first she was permitted only 4 to 5 hour visits in the community. Why was her parenting time so restricted?

[136] Despite requests to have overnight visits as early as February 2023, they did not commence until April 2023 and they have only been for one overnight. The father explains the delay being due to the mother’s refusal to send him a picture of Melanie’s sleeping arrangements. He said at his home Melanie was sleeping in her own bed so the mother’s proposal of “co-sleeping” at her home was unacceptable to him.

[137] The court has difficulty accepting the father’s concern around Melanie’s sleeping arrangements in the mother’s home given that the mother was the child’s primary caregiver for the first year and a half of Melanie’s life and the father had no concerns with the mother’s care of Melanie during this time. In addition, it is hard to place much weight on the father’s concerns given that he allowed Melanie to sleep in the unfinished basement of his grandparents’ home for the first 6 months she was in his care which he agrees was not appropriate accommodations for her.

[138] The father’s evidence is that despite his concerns, Melanie is happy to see her mother and returns from visits happy. He says he has no doubt that Melanie and her mother love one another and “are very bonded”. For these reasons, he knew or ought to have known that it was in Melanie’s best interests to facilitate more parenting time sooner then he did.

[139] When pressed on the possibility of a shared parenting regime for Melanie, the father said that this would not work as the mother would have to leave Melanie in the care of a third party when she works from 10:00 a.m. to 10:00 p.m. The father was asked if a shared parenting regime would work if the mother worked a day shift. He said the mother has never offered to do this before as she has always put her job before Melanie. The father gave no evidence to suggest that the mother’s parenting time should be restricted in the manner it currently is.

[140] In retrospect the father was able to show some self awareness and critical thinking when he acknowledged at trial that he should have facilitated extended and even overnight parenting time by the mother over the 2022 Christmas holidays.

[141] As a result of the limited parenting time the mother has had since February 24, 2022, I find that it is in Melanie’s best interests for the final order to provide the mother with an unequal amount of parenting time with Melanie over the 2023 summer months.

Findings regarding the mother’s parenting time post February 24, 2022

[142] The father has not exercised the discretion given to him by Justice Zisman on February 24, 2022, to determine the appropriate parenting schedule for the mother reasonably or in Melanie’s best interests. Given that Melanie is very bonded to her mother, Melanie should not have been denied physical contact with her mother for almost a full month and have been subjected to such limited time with her mother for the past 15 months. The father is expected to exercise the court ordered discretion in a manner that fosters and maintains the bond that he knew Melanie had with her mother before she was ordered into his care. He did not do that.

[143] It is unclear to the court why the mother did not bring a motion before the case management judge for an increase in her parenting time.

[144] I find that the father has fabricated or exaggerated his concerns regarding the mother’s parenting time. If the mother was not engaging with Melanie during her visits and deferring to the father and his mother for Melanie’s care, why would the father agree to unsupervised parenting time that eventually increased to overnight? He contradicts himself when he says the mother is not engaging with Melanie during visits but that Melanie is “very bonded” to the mother and returns home from visits happy.

[145] The mother acknowledged that she returned Melanie to the father on one occasion with a wet diaper. Her explanation was compelling. Young children who wear diapers will wet their diapers. Sometimes it happens in transit and there is a little a parent can do. I do not believe that the mother neglects Melanie and would leave her in a wet diaper for an extended period if there was another option. The evidence is that the mother has always provide Melanie with appropriate care and been attentive to her needs. The father’s complaint in this regard is petty.

[146] I reject the father’s evidence that the mother has provided Melanie with questionable care during her visits. The father’s evidence was inconsistent. He admitted without hesitation that he never had any concerns about the mother’s care of Melanie prior to February 24, 2022, and that her plans to allow Melanie to travel to Vietnam was the sole reason for his urgent motion, not her care of Melanie. I find that his evidence of concerns regarding the mother’s care of Melanie following February 24, 2022, are self serving and without merit.

[147] The father’s willingness to make petty complaints about the mother’s parenting time since March 2022 was impactful. The court found his focus on these trivial issues to be misguided and unhelpful when having to determine a parenting plan for Melanie that is in her best interests.

[148] For the reasons set out in this section of the Judgment, where the parties evidence differs on the quality of the mother’s parenting time after February 24, 2022, I prefer the mother’s evidence to that of the father.

(b) Who is primarily responsible for Melanie’s care in the father’s home?

[149] The father says that he is Melanie’s primary caregiver and that his mother and grandparents provide him with support when he is working or unable to care for Melanie. Yet in cross examination when he was asked how he and his mother divide the caregiving tasks, he said “we try to keep it equal”.

[150] For the reasons set out below, I find that the paternal grandmother has been Melanie’s primary caregiver since Melanie went to live with the father on February 24, 2022.

[151] The father and his mother both gave evidence about Melanie’s care and routine since coming into their home. Both said that the father is Melanie’s primary caregiver and gave the same evidence with respect to the following:

(a) The paternal grandmother is responsible for Melanie’s care at night which includes getting her ready for bed and putting her to bed including when the father is working Thursday to Sunday from 10:30 p.m. to 7:30 a.m.

(b) The paternal grandmother is responsible for cooking for Melanie.

(c) The paternal grandmother is responsible for Melanie’s care when the father sleeps during the day Thursday to Sunday prior to going to work at 10:30 p.m.

(d) The paternal grandmother quit her employment in April 2022 and continues to be unemployed.

[152] The father’s and paternal grandmother’s evidence about Melanie’s care and routine that differs creates significant doubt that the father has been Melanie’s primary caregiver since February 24, 2022. The differences are not on trivial matters.

[153] The following is a list of the contradictions between the father’s and his mother’s evidence regarding Melanie’s care in their home:

(a) The father gave evidence that Melanie was moved from a crib in the unfinished basement where the father and paternal grandmother sleep to her own room on the main floor in a toddler bed by August or September 2022 while the paternal grandmother said she was in her own room on the main floor within weeks of arriving at their home on February 24, 2022.

(b) The father gave evidence in chief that Melanie sleeps by herself and then contradicted himself and said that an adult sleeps with her. The paternal grandmother says she sleeps in Melanie’s room with her in a separate bed. This contradicts the father’s affidavit of evidence in chief.

(c) The father gave evidence that Melanie wakes up between 7:30 a.m. and 8:00 a.m. and has breakfast between 8:00 a.m. and 8:45 a.m. while the paternal grandmother gave evidence that Melanie wakes up between 6:30 a.m. and 7:00 am., and has breakfast between 7:30 a.m. and 8:00 a.m.

(d) The father gave evidence that Melanie has dinner around 5:30 p.m. or 6:00 p.m. and has a bath by 8:00 p.m. The paternal grandmother said Melanie has dinner between 4:30 p.0m. and 5:00 p.m. after her bath and before the father goes to sleep before going to work.

(e) The father gave evidence that they try to bathe Melanie twice a day while the paternal grandmother said Melanie is bathed once a day at 4:30 p.m. after her daily nap and just before dinner. When asked if Melanie is bathed twice a day, the paternal grandmother said only once unless she messes herself and requires cleaning.

(f) The father gave evidence that Melanie naps from around 12:30 or 1:00 p.m. until around 2:30 p.m. while the paternal grandmother said she naps from 1 p.m. to 3:00 p.m.

(g) The father gave evidence that when he is working he sleeps at the same time Melanie naps from 12:30 p.m. or 1:00 p.m. to around 2:30 p.m. and from 6:00 p.m. to 8:00 p.m. The paternal grandmother said the father sleeps from 5:00 p.m. to 10:00 p.m. on the days he is working.

(h) The father claims to be the primary caregiver but the paternal grandmother gave evidence that she takes care of Melanie during the day, takes care of her food and clothing and helps with bathes and “is on duty” when the father is working.

(i) The father gave evidence that Melanie has a lot of toys that are kept in her own playroom but the grandmother gave evidence that Melanie’s toys are all kept in bins in the kitchen.

(j) The father gave evidence that his mother quit her job in April 2022 to help with Melanie’s care “while all this was going on” while the paternal grandmother said she quit her job because she was burnt out. The father said his mother plans to return to work after Melanie’s parenting schedule is resolved by the court.

(k) The father gave evidence that during video calls Melanie recognized her mother’s voice and made eye contact with the mother and paid attention to the screen when her mother spoke. The paternal grandmother said not only was Melanie unable to engage at all with her mother during video calls, but she still does not understand video calls. She said the video calls provided no benefit to Melanie.

[154] The father also contradicted his own evidence regarding Melanie’s care and routine in his care. He gave evidence that “After Melanie has dinner we read and play until Melanie is tired out – this is usually about 7 pm to 7:30 pm.” As the father says that Melanie has dinner between 5:30 p.m. and 6:00 p.m. and he sleeps between 6 p.m. and 8 p.m. he cannot be reading to or playing with Melanie after dinner at least each week from Thursday to Sunday.

[155] The father says that he sleeps when Melanie naps between 12:30 p.m. and 2:00 p.m. during the days he works (Thursday to Sunday) but he also gave evidence that he plays floor hockey during the fall and winter from 11:00 a.m. to 1:30 p.m. on Saturday and Sunday, days he currently works. This would mean that Melanie is in the paternal grandmother’s care for most of the weekend during the fall and winter given the father’s floor hockey and work schedule.

Findings regarding Melanie’s primary caregiver in the father’s home.

[156] Both the father and paternal grandmother gave evidence about “us” and “we”. The father rarely gave evidence about “me” or “I”. It is clear the father and his mother are a team when it comes to caring for Melanie and the father believes his rights in relation to Melanie, are also his mother’s rights. At times it was unclear who the father was referencing when he used the words “us” and “we” in his oral evidence.

[157] The paternal grandmother gave her evidence regarding Melanie’s routine in such a confident, straight forward manner that I reject the possibility that her evidence is inaccurate and the father’s evidence on the topic is preferable. She was very certain and gave specific times when describing Melanie’s routine while the father gave ranges of times and approximates and changed his evidence on several occasions. In his oral evidence he contradicted his affidavit evidence in chief.

[158] As the father admitted that his mother takes care of Melanie when he is at work and sleeping, at mealtime or playing ball hockey and is mostly responsible for bedtime routine, this amounts to a significant amount of time which includes the following:

(a) Thursday to Sunday when the father is at work from 10:30 p.m. to 7:30 a.m. This results in Melanie being in the paternal grandmother’s care when she wakes in the morning and during breakfast;

(b) Friday to Sunday when the father sleeps from 6:00 p.m. to 8:00 p.m. according to the father or 5:00 p.m. to 10:00 p.m. according to the paternal grandmother. Either way, this period of time overlaps with either or both of Melanie’s dinner time and play time before bed.

(c) During meals;

(d) At bath time; and,

(e) On Saturday and Sunday afternoons in the fall and winter from 11:00 a.m. to 1:30 p.m. when the father plays floor hockey.

[159] The paternal grandmother quit her job in April 2022. She has not worked outside the home since that time. She gave very clear and concise answers about Melanie’s care and it was abundantly clear that she is primarily responsible for Melanie’s care in the father’s home and has been since February 24, 2022.

Is it concerning that the paternal grandmother is Melanie’s primary caregiver?

[160] When Melanie was in the mother’s primary care she relied on her mother to assist with childcare responsibilities. The maternal grandmother was actively involved in Melanie’s care and provided childcare for Melanie when the mother was working until she left for Vietnam in February of 2022. The father and his mother gave evidence that Melanie was with her maternal grandmother more than the mother.

[161] Is the arrangement the father currently has with his mother for Melanie’s care different than the arrangement the mother had with her mother?

[162] Both the father and his mother gave evidence that the maternal grandmother was responsible for Melanie’s care more often than not. The father said that the mother prioritized her employment over Melanie. He thought she worked too much and would take on extra shifts or worked overtime at the expense of spending time with Melanie. The paternal grandmother said that when Melanie first arrived in their home she did not think Melanie would be upset by not seeing her mother but worried that she would miss her maternal grandmother because she was “more or less” Melanie’s mother. In fact, the paternal grandmother said Melanie did not miss her mother and was not upset by not seeing her.

[163] The paternal grandmother does not like the mother who she describes as selfish and a liar. She made that clear in her evidence. She said she did not want her son to marry the mother. She told the father as much. She told the father to start court proceedings against the mother. When the paternal grandmother was asked if she supported the mother obtaining Canadian citizenship, she said she did provided she did so on her own and not by marrying her son. She said, “I do not want her to marry Daniel”.

[164] When the paternal grandmother was asked if it was hard for Melanie to go so long without seeing her mother, she said “ I don’t know as she doesn’t pay attention to her mother now so I don’t think it bothered her at all by any means.”

[165] The paternal grandmother’s evidence regarding the mother’s “drug habit” as set out above revealed more for the court about the paternal grandmother’s opinion of the mother and her willingness to malign her character to bolster her son’s position at trial.

[166] The paternal grandmother’s opinion of the mother and her relationship with her son matter because the father has an extremely close relationship with his mother. Both the father and his mother gave evidence that they are very close, they spend a lot of time together, do everything together, talk about everything and the father said that they are more like brother and sister than mother and son. When Melanie was moved into the father’s care, both he and his mother were sleeping in the unfinished basement of his grandparents’ home. The paternal grandmother said that even at 23 years of age her son is still always at her side.

[167] The father gave evidence that at the beginning of 2023 he had been discussing reconciliation with the mother. He wants to raise Melanie together with the mother and be a family. He admits he said to the mother that if she has two more children with him, he will marry her but said it was a joke. In fact, he sent her a message on January 11, 2023, saying “soon we’ll be a family” and that “I really trust you”. He said that he and the mother agreed to “a plan” to “hopefully get back together and co-parent Melanie”. He said they joked about having more children together. He sent her a message saying that everything that has happened is his fault but in his oral evidence explained that the mother misled him causing him to fantasize about repairing their relationship.

[168] The paternal grandmother said she did not know that the parties had been discussing reconciliation and that she does not approve of her son resuming a relationship with the mother. She said they do not have to be together to raise Melanie and that if her son were to tell her that he is considering reconciling with the mother she would voice her objection which she said would likely result in an argument.

[169] The father’s evidence about the recent discussions with the mother around reconciliation revealed a young man who is having great difficulty processing what has occurred between him and the mother. He seems tormented. He genuinely cares about the mother. This was obvious to the court. From the close relationship the father shares with his mother, the court concludes that it is very likely that the father is conflicted by his feelings for the mother and his concerns around his own mother’s opinion her.

[170] The father has been influenced by the paternal grandmother’s opinions of the mother. The father and paternal grandmother chose not to attend the first birthday party the mother invited them to for Melanie on August 8, 2021. This occurred just after the conversation the paternal grandmother had with the mother in which the court found the paternal grandmother threated to commence court proceedings for primary care of Melanie. The father gave evidence that he did not attend the first birthday party for his daughter because it would have been uncomfortable, especially for his mother. The father agreed with the mother’s evidence that he did not see Melanie at all in August 2021. He also agreed that he did not see Melanie on or near her birthday in 2021.

[171] The father showed very poor judgment by not attending his daughter’s first birthday party. The evidence did not suggest the parents were not getting along at this period of time. It was the paternal grandmother and the mother who had conflict. The father’s conduct demonstrates that he was unable to separate himself from his mother and put his daughter first.

[172] The father admittedly only ever wanted regular parenting time with Melanie, specifically alternate weekends. He never expressed a desire or willingness to care for Melanie full time. Unlike the paternal grandmother, the father did not threaten to bring court proceedings against the mother or remove Melanie from her care. The evidence supports a conclusion that the paternal grandmother has influenced the father and has acted in a manner that has negatively impacted his relationship with the mother. This is extremely relevant when considering what final parenting orders are in Melanie’s best interests.

[173] The maternal grandmother did not give evidence disapproving of the father or his mother. She showed no ill will at all towards the father or his family. She felt that Melanie should not be left in Daniel’s care alone as she did not believe he knows how to care for a child. She did not disparage the father or his mother and said that she would attend their home for a special occasion if invited.

[174] The answer to the question posed above, “Is the arrangement the father currently has with his mother for Melanie’s care different than the arrangement the mother had with her mother?” is yes, it is different.

[175] The paternal grandmother’s negative opinions of the mother and her care of Melanie is concerning. Her willingness to interfere in the father’s relationship with the mother and to voice such strong opposition to her son marrying the mother or reconciling with her also raises alarms for the court especially since she is Melanie’s primary caregiver. It is not in Melanie’s best interests to be primarily cared for by someone who has such a negative view of her mother as it raises the real possibility of her views leaking on Melanie as she gets older.

C. What final parenting orders are in Melanie’s best interests?

Each party’s plan for Melanie

The father’s plan

[176] The father seeks an order for sole decision making responsibility for Melanie as he says the mother cannot be entrusted with the responsibility of making major decisions for Melanie as she has demonstrated poor judgement in the past and the major decisions that she undertook for Melanie without consulting and in some cases even notifying the father is reason enough for him to have sole decision making responsibility for Melanie.

[177] The father says that his plan for Melanie to remain in his primary care should be preferred by the court as he is the one who has ensured over the last year that her needs have been met. He advocated and cooperated for Melanie to be assessed for autism, he arranged for Melanie to attend speech therapy, he has taken her to the Early On children’s program on a regular basis to allow her to develop her social skills and, he better understands Melanie’s diagnosis and her needs arising from it.

[178] The father has the assistance of his mother and other relatives when he is unable to care for Melanie while at work or for other reasons. He does not plan to enroll Melanie in daycare until she is school age and only if he requires the help given he has the assistance of several “caregivers” in his home.

[179] The father’s plan includes the mother having frequent overnight parenting time.

[180] The father currently works Thursday to Friday 10:30 p.m. to 7:30 a.m. He gave evidence that is able to obtain full time work hours and prefers the night shift so he can spend time with Melanie during the day. He says he is waiting for the outcome of the trial before increasing his hours. He also said that he could enquire about changing his night shift to either the day shift from 6:00 a.m. until 1:00 p.m. or the evening shift from 2:00 p.m. until 10:00 p.m. His mother will care for Melanie while he is at work with the assistance when needed from others in the home.

[181] The father has made enquiries about schools for Melanie and says there are several options. Melanie has friends in the father’s neighbourhood.

The mother’s plan

[182] The mother is agreeable to sharing decision making responsibility with the father but if the court finds that to be inappropriate, she asks for an order granting her sole decision making responsibility.

[183] The mother asks for Melanie to be returned to her primary care. The mother says she met all of Melanie’s needs in the first year and a half of her life and is capable of ensuring that if placed primarily in her care, Melanie’s developmental and psychological needs will be met just as well as her physical needs.

[184] The mother’s plan is to leave her employment in order to spend time with Melanie and to source out and implement appropriate services for Melanie. She said if returned to her primary care, Melanie would be her first priority. She said she would arrange for daycare for Melanie which she will require when her mother is not in Canada but the most important service right now is for Melanie to continue with speech therapy.

[185] The mother has investigated daycares in her neighbourhood but prior to Melanie’s Autism diagnosis. She also believes she will qualify for a daycare subsidy.

[186] The mother says she will continue to take Melanie to the Early On drop in centres for children, which the father has been doing, closest to her home until Melanie is enrolled in daycare in order to foster her speech and socialization.

[187] The mother believes it is important for Melanie to be in her care to foster her Vietnamese heritage. She belongs to a Catholic Church that she attends once per week and hopes to have Melanie attend that Church with her and other Vietnamese people.

[188] The mother has connected with Vietnamese groups in Toronto and has attend cultural events and has made contacts with people whom she can talk to about life in Canada.

[189] The maternal grandmother gave evidence that she will be returning to Canada to live with her daughter and granddaughter on July 11, 2023. She says she will stay in Canada for 5 months and 26 days. She will assist with Melanie’s care when the mother needs support.

[190] The mother’s plan includes the father having frequent overnight parenting time.

[191] The mother has friends in her neighbourhood who have children Melanie’s age including her landlord upstairs who has 2 children. The mother has also become friends with her next door neighbour who gave evidence at the trial that they met in 2020 and her 3 year old son has interacted with Melanie in the neighbourhood and at the park. The mother, her landlord and the next door neighbour have enjoyed barbecues together during which the children play.

[192] The father says the mother’s plan of leaving her employment is unrealistic. The mother says she has some savings and with the child tax benefit and hopefully some child support from the father, she can afford to take some time off work to be with Melanie and to make arrangement for services and daycare prior to returning to work.

Conclusion regarding whose plan will best meet Melanie’s needs

[193] I find that both parents with the help of their mothers are able to meet Melanie’s physical and developmental needs. Both parents engaged with professionals when required and followed their advice. Both have taken steps to ensure that Melanie’s health needs are being appropriately addressed. There is no reliable evidence of either party neglecting Melanie or failing to do anything necessary to promote her health and wellbeing. The difference between the parties in this regard is the extent to which the paternal grandmother has taken on the care giving responsibilities for Melanie or provided significant assistance to the father.

[194] As the evidence reveals that the paternal grandmother takes on the majority of the responsibility for Melanie’s care, the court is unable to find that the father, on his own, can meet Melanie’s needs on a full time basis. Conversely, the evidence is that the mother and maternal grandmother worked together raising Melanie and the maternal grandmother provided childcare while the mother worked. The mother did not delegate the care of Melanie on a day to day basis to the extent the father does as she was responsible for all of Melanie’s medical care, she was responsible for facilitating the father’s parenting time, and, she arranged play dates and outings with her friends and neighbours who have children. The court did not hear evidence that the mother delegated day to day chores like cooking for Melanie, bathing her or purchasing her clothing to the maternal grandmother.

[195] The paternal grandmother’s involvement in Melanie’s care is also problematic for the court given the court’s findings regarding the paternal grandmother’s opinions of and behaviour towards the mother. These concerns are heightened by the father’s belief that his rights in relation to Melanie somehow include his mother and her rights. The court cannot count the number of times the father gave evidence about “our rights”, “our concerns”, “our needs” and what the mother has done “to us”.

[196] I am concerned that the paternal grandmother will continue to have a negative impact on the parents’ relationship with each other which may eventually have a negative impact on Melanie as she gets older.

[197] While both parents are able to meet Melanie’s instrumental physical needs with assistance from their mothers, I find that the mother is better able to meet Melanie’s emotional and psychological needs. I am very concerned that the father will not be able to shield Melanie from his mother’s negative views of her mother. Conversely, the court has no cause for concern regarding the maternal grandmother and her views of the father. She said nothing about the father that was mean spirited or vindictive and when asked if she would attend a party at the paternal family’s home if invited, without hesitation the maternal grandmother said, “yes”.

[198] I also find that the father’s failure to facilitate more parenting time by the mother to Melanie since February 2022, demonstrates a lack of insight and understanding of her emotional and psychological needs. This is especially concerning given how much time Melanie has been in the care of the paternal grandmother since February 2022 when she could have been with her mother.

[199] While I find that the father failed to facilitate sufficient parenting time between the mother and Melanie since February 2022, it is not lost on the court that the mother was willing to have Melanie travel to Vietnam for 2 to 3 months during which she would not see either parent. The court understands the mother’s evidence that the father did not spend much time with Melanie and in the first year and a half of her life, the mother says there were four full months he did not even see Melanie. Even if true, the mother’s willingness for Melanie to be away from her and the father for 2 to 3 three months at such a young age also demonstrates a lack of insight and understanding into Melanie’s emotional and psychological needs.

[200] While I have issues with both parents’ judgment and decision making at times, I prefer the mother’s plan to that of the father’s because of the amount of time Melanie is in the paternal grandmother’s care when in the father’s home. The father has delegated a significant amount of his childcare responsibilities to his mother. Of course parents rely on third parties including family members to assist with their children’s care when help is required. There is nothing wrong with this. The concern I have with the father’s plan in this case is the amount of time Melanie is in the primary care of the paternal grandmother who very clearly dislikes and disapproves of the mother and her relationship with her son.

[201] I also have concern with the father’s inability in the past to put Melanie’s needs before his own and the needs of his mother. He has chosen to side with and support his mother in disagreements with the mother at the expense of Melanie’s best interests. In other words, at times he has preferred his relationship with his mother over the relationship with his daughter and the mother. He has been unable to reduce his mother’s involvement in and influence over his relationship with the mother. Her involvement has caused conflict for the parents.

[202] Finally, it is worrisome that the father felt it helpful to attack the mother’s parenting of Melanie by noting her being late for visits, returning Melanie in a wet diaper, not having proper supplies for her, failing to return items belonging to the father and suggesting the mother does not engage with Melanie during visits. This evidence given by the father was ineffective and not seen as favourable to the father’s position.

[203] Throughout his evidence, the father made several comments about the mother’s work schedule and what he described as her willingness to put her employment before Melanie. The father, who does not pay rent and who never paid the mother child support or contributed towards the cost of childcare for Melanie, was painfully oblivious to how his choice not to pay child support for Melanie may have contributed to the mother having to prioritize work over Melanie in order to support herself, Melanie and her mother who provided childcare. His sense of blamelessness and righteousness when giving this evidence was very impactful. It says a lot about his lack of insight into his own behaviour.

[204] The mother’s evidence is that if returned to her primary care, the mother will make Melanie her priority. She will leave her employment and ensure that Melanie is enrolled in a daycare that can meet her special needs. I accept the mother’s evidence and believe that the mother is prepared to put Melanie first and prioritize her needs if returned to her primary care.

[205] I find that the mother’s plan for Melanie’s care is preferable to that of the father, is in her best interests and will best meet her physical, emotional and psychological safety, security and well-being. For these reasons, there will be an order that Melanie’s primary residence shall be with her mother.

Decision making responsibility

[206] The evidence demonstrates that for the first year and a half of Melanie’s life the mother was able to meet all of Melanie’s needs and provide instrumental care of her albeit with the maternal grandmother’s help. She took her to all of her doctors’ appointments and ensured her healthcare needs were being addressed. She promoted a relationship between Melanie and her father and paternal family. She made all of the decisions impacting Melanie.

[207] While in the father’s care he too, with the assistance of his mother, met all of Melanie’s needs and provided instrumental care. He pursued the child’s doctor’s recommendation that Melanie be assessed for autism. He arranged and took Melanie to speech therapy. He is engaged with Melanie’s service providers and has taken steps to education himself about autism.

[208] Over the past year since Melanie was placed in the father’s care, the paternal grandmother has taken responsibility for the bulk of Melanie’s day to day care but the father has been involved in the major decisions impacting Melanie. In addition, he actively involved the mother in the decision making process.

[209] The evidence demonstrates that when the paternal grandmother is removed from the equation, the parents get along rather well. In the recent past they have socialized together with Melanie, they have gone to medical appointments for Melanie together and they have even discussed reconciling and having more children.

[210] In determining who shall have decision making responsibility, the court is mindful of the mother’s conduct in the past, specifically her exclusion of the father’s name from Melanie’s government issued documents and her belief that she can send Melanie to Vietnam for 2 to 3 months without the father’s consent. In addition, the mother’s failure to comply with the court’s order to deliver up Melanie’s documents is also relevant with respect to the issue of decision making responsibility. This conduct requires court orders to ensure that the father shall not be excluded in this manner again.

[211] I find that the parents cooperate sufficiently and effectively communicate such that they can make decisions regarding Melanie together. They have both made appropriate decisions for Melanie in the past. They both have at times demonstrated sufficient respect for each other and their opinions making them good candidates for joint decision making responsibility. However, as stated above, I am concerned with the influence the paternal grandmother has over the father and the manner in which she has inserted herself into the lives of the parents and Melanie.

[212] As a result of the findings set out above, there will be an order granting the parties joint decision making responsibility for Melanie. If the parties are unable to agree on a major decision for Melanie, the mother shall have the right to make the final decision. The court does not want the mother to have to make decisions regarding Melanie with the father and the paternal grandmother.

[213] While the mother will be granted final decision making should the parties not be able to agree on a major decision, due to the mother’s conduct both before and after the commencement of court proceedings, the father shall have final decision making with respect to Melanie travelling outside of Ontario. In addition, the mother will be required to ensure that the father’s name and contact information is included in all official registrations of the child in daycare, school, with doctor’s etc. Finally, the mother shall not be permitted to obtain or renew any official or government issued documents whether by the Canadian or Vietnamese Government.

Parenting schedule

[214] With respect to a parenting schedule for Melanie, I find that it is important to maximize the time Melanie spends with each parent when they are available to be Melanie’s primary caregiver.

[215] A parenting regime will be ordered that maximizes the time Melanie is in the care of her parents as opposed to third parties. The father should have Melanie in his care on the days he is not working. Currently he is not working on Mondays to Wednesdays. It makes sense that Melanie be in his care on these days but he will be responsible for taking Melanie to daycare and school once she is enrolled. In the alternative, if the father can change his work schedule so that he does not work alternate weekends, he should have Melanie in his care alternate weekends from Friday to Monday with pick up and drop off at school/daycare. If the father works Sunday evenings, he will be required to return Melanie to her mother’s care before he goes to work. In addition, he should have Melanie for one overnight during the week when he is not working.

[216] The parties have both provided the court with a draft order that has a comprehensive holiday parenting schedule. No evidence was called at all on this issue leaving the court unable to make orders regarding all school, statutory and religious holidays. The parties shall attempt to resolve this issue between them failing which an appearance will be scheduled to make submissions on the issue and an order will follow.

Child Support

[217] Both parties seek child support from the other pursuant to section 33 of the Family Law Act.

[218] The mother seeks an order requiring the father to pay her child support once Melanie is returned to her primary care and for the period of January 1, 2021 until February 1, 2022 as the father did not provide child support for Melanie for this period. The father does not deny that he did not provide the mother with monthly child support but says that he should not have to pay retroactive child support for the period of January 1, 2021 until August 1, 2021 as he and the paternal grandmother provided the mother with many items and supplies for Melanie during this time.

[219] The mother says the father’s retroactive and prospective child support should be $273.00 per month based on an annual income of $32,000.00 and Child Support Guidelines.

[220] In terms of special or extraordinary expenses for Melanie, the mother asks the court to order the parties to share daycare and medical expenses not covered by government funding and any other agreed upon special or extraordinary expenses equally.

[221] The father agrees to pay the mother child support for the period of September 1, 2021 up to and including February 2022 based on his income of $29,848.00 in 2021 and an income of $31,000.00 for 2022 and the Child Support Guidelines. He says this would amount to a monthly payment of $254.00 for September to December 2021 and $266.00 [10] for the months of January and February 2022.

Issues for the court to decide with respect to child support

The mother’s claims

January 1, 2021 to February 2022

[222] The mother says the father should pay child support as of January 1, 2021 as the parties specifically discussed child support at that time. The father says he should not have to pay the mother child support until September 2021 because before that date he and his mother purchased a lot of items and supplies for Melanie and delivered them to the mother’s home.

[223] The father agrees to pay the mother retroactive child support for the period of September 2021 until February 2022. He says his child support should be based on his actual income for those yeas as set out on his income tax returns. The mother says his child support should be based on an imputed income of $32,000.00.

[224] Therefore with respect to the mother’s claims, the court does not have to decide whether the mother is entitled to retroactive child support as the father agrees that she is. The court is left to decide if the father’s obligation to pay retroactive child support should commence on January 1, 2021 or September 1, 2021 and on what income.

Commencement date for retroactive child support

[225] The mother’s evidence is that she asked the father several times to secure employment so that he could provide financial assistance for Melanie. Despite her requests, he did not pay any child support. Her evidence is that in July 2021 the mother spoke to the paternal grandmother and asked for her help in securing child support from the father. She said this resulted in angry written communication from the father the next day.

[226] The father knew he had an obligation to provide the mother with child support. He specifically said he bought the mother items between January 1st and September 1st, 2021 rather than pay her child support because of his concern that she would spend the money on drugs. This evidence has already been rejected by the court. He should have paid the mother child support. He knew she needed child support given how much she was working and she was supporting her mother who provided their childcare.

[227] Purchasing items for the primary caregiver or for the child is not a replacement for child support. Child support is paid to assist the primary caregiver in providing necessities such as food shelter and clothing. The payor cannot determine how the recipient’s child support is to be spent.

[228] The father knew the mother was working long hours to support herself and Melanie and still did not assist her by providing child support. He failed to pay child support even while he had very low living expenses as he is not required to pay rent to his grandparents.

[229] I find that the father’s retroactive child support should commence as of January 1, 2021 as purchasing items and supplies for the mother between January 1st and September 1st, 2021 does not excuse the father from having to pay the mother child support.

On what income should the father’s retroactive child support be based on?

[230] The mother did not provide the court with a reason to impute income to the father for the period of January 1, 2021 until February 2022 and no evidence was called to suggest the father was underemployed or failed to disclose his income for this period. Therefore, the child support for this period will be based on the father’s actual income.

The parties’ claims for prospective child support

The mother’s claims

[231] The mother asks the court to impute income to the father at $32,000.00 and fix child support in accordance with the Child Support Guidelines.

[232] As Melanie will be in the primary care of her mother, the court must determine the father’s child support obligation once that transition takes place.

[233] The court must determine a support payor’s income is accordance with the Child Support Guidelines (the Guidelines). Section 2 of the Guidelines provides that “income” means the annual income determined under sections 15 to 20. Where the parties do not agree on what the payor’s income is, section 16 of the Guidelines states that “Subject to sections 17 to 20, a parent’s or spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.”

[234] If relying on a payor’s most recent personal income tax return would not be the fairest way in which to determine their income, section 17 provides that the court can determine a fair and reasonable amount having regard to the payor’s income over the last three years and “any pattern of income, fluctuation of income or receipt of a non-recurring amount”.

[235] When a payor is the sole shareholder of a business, section 18 of the Guidelines also comes into play. This section gives the court discretion to attribute some or all of the pre-tax income of a corporation to the shareholder, director or officer personally or, in the alternative, to attribute an amount less than or equal to the pre-tax corporate income that is commensurate with the services that the parent provides to the corporation. Whenever section 18 comes into play the onus is on the shareholder, director or officer to show that corporate monies, whether retained earnings or pre-tax corporate income, are not available for support purposes. Nesbitt v. Nesbitt, 2001 MBCA 113, [2001] M.J. No. 291 (C.A.), paras. 19 & 21; Hausmann v. Klukas, 2009 BCCA 32, [2009] B.C.J. No. 121 (C.A.) 32, paras 51-61. That is because the payor parent knows more about the business than the recipient and is therefore in the best position to explain why some or all of the company’s pre-tax income is not available for support. Elder v. Dirstein, 2012 ONSC 2852.

[236] Finally, in appropriate circumstances, the court may impute income to the payor for reasons including those enumerated in section 19 of the Guidelines. Liscio v. Avram.

[237] Section 19 of the Guidelines provides that the court may impute to a parent or 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 parent or spouse as it considers appropriate in the circumstances, which circumstances include the following:

(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.

(d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines.

(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.

[238] The above is a non exhaustive list and as such, the court has discretion to impute income based on other circumstances.

[239] The father works part time at Freshco where he earns $15.50 per hour and a night shift premium of $0.80 per hour. If the father worked full time at the regular rate of $15.50 per hour he would earn approximately $32,240.00 per year. With the night shift premium he would earn approximately $33,900.00 per year.

[240] As the father says he has been offered full time hours at Freshco and that he intends to take on more hours once this litigation is completed, the court finds that he can work full time. As the mother only asks for child support to be based on an annual income of $32,000.00, the father’s child support obligation will be based on this income and will be adjusted each year if the father’s income increases.

The father’s claims

[241] The father asks the court to impute income to the mother at $45,000.00 for 2022 and to gross that amount up to include income tax before fixing the mother’s child support obligation pursuant to the Child Support Guidelines. He agrees to the mother receiving credit against any arrears for the amounts she has paid in child support to date.

[242] The father has not provided the gross up calculations for the court to consider.

[243] The mother’s evidence is that she use to work at a waitress for $12.00 per hour plus tips. She now works at a restaurant for $16.00 per hour plus tips and arranges her work hours around her parenting time on Tuesdays and Saturdays to Sundays.

[244] The mother says she currently works 6 days which is approximately 42 hours per week. At $16.00 per hour that amounts to $672.00 per week or $34,944.00 over 52 weeks. The mother provided the court with an up to date Financial Statement sworn May 10, 2023 in which she swears she earns approximately $2,048.00 per month in wages in $1,024.00 in tips over 48 weeks. The mother says in 2021, her income tax return discloses an annual income of $38,273.00.

[245] The mother attaches paystubs to her May 10, 2023 income tax return. The paystubs show deductions for federal and provincial tax, CPP and EI.

[246] The mother was not cross examined on the issue of whether she earns cash income from waitressing which should be grossed up for income tax when calculating her child support obligation for the period Melanie is in the father’s care. She was cross examined on whether she earns some cash income on the side from selling items either to or for a pawn shop. I cannot find from the evidence that the mother earns any significant additional income from this work on a regular basis.

[247] I find no basis for imputing income to the mother.

[248] The mother began paying the father child support as of September 1, 2022, in the amount of $339.00 per month based on her 2021 annual income of $38,300.00 and the Child Support Guidelines.

[249] The mother’s Financial Statement sworn May 10, 2023, is the most up to date income information for her. There was no evidence presented to suggest that her paystubs are not an accurate assessment of her wages. She discloses $1024.00 per month in tips. There was no evidence called to suggest that is an inaccurate assessment of her income. There was no evidence called as to whether the mother declares any portion of her tips as income on her income tax return.

[250] Therefore, I find there is no basis upon which the court should gross up any of the mother’s income to account for her earning income free of tax.

[251] There will be an order requiring the mother to pay the father child support in the amount of $324.00 for the period of March 1, 2022 up to and including July 1, 2023 based on the mother’s current annual income of $36,864.00 and Child Support Guidelines. She shall receive credit for any amounts paid in child support to the father either directly to him for which there is documentary evidence or through the Family Responsibility Office.

Final orders to go as follows:

[252] The parties shall share decision making responsibility for Melanie jointly. When a major decision arises, the parties shall make a concerted effort to agree as to the decision to be taken. In doing so, they shall consult with and consider the input and advice of the relevant professionals or serviced providers working with Melanie. If they cannot reach an agreement, the mother shall make the final decision and shall notify the father immediately upon doing so.

[253] Commencing Monday September 4, 2023, at 5:00 p.m. Melanie shall have her primary residence with the mother and attend daycare/schools in her catchment.

[254] Commencing Tuesday September 5, 2023, the father shall have regular week to week parenting time as follows:

(a) If the father can arrange his work schedule to have his weekends off, he shall have Melanie in his care alternate weekends from Friday after daycare/school until return to daycare/school Monday morning. If the father is unable to return Melanie to daycare/school Monday morning due to his work schedule, he shall return her to the mother’s home Sunday night by 7:00 p.m.

(b) If Melanie is not in school or daycare, the pickup and drop off shall take place at the mother’s home.

(c) If the father works weekends, he shall have Melanie in is care during the week for up to 48 hours provided that if Melanie is enrolled in daycare, she attends daycare every day as required by the daycare or the daycare subsidy. Melanie shall be in the father’s care the same two days (48 hours) every week. The father shall notify the mother which two days he intends to exercise his parenting time if he cannot or will not arrange his work schedule to have at least alternate weekends off work.

(d) The father shall choose one of the above options. He cannot change his parenting schedule on a week to week basis. He shall have parenting time on a permanent basis, unless otherwise agreed to by the parties, in accordance with paragraph 253(a) or (c) above.

(e) If the parties cannot agree on the father’s regular week to week parenting time, they shall arrange for an appearance before the trial judge through the trial coordinator’s office.

[255] For the months of July and August in 2023 only, Melanie shall be in her mother’s care as follows:

(a) From Sunday July 2, 2023 at 9:00 a.m. until Tuesday July 4, 2023 at 7:00 p.m.

(b) From Friday July 7, 2023 with pick up by 5:00 p.m. or earlier if the mother’s work schedule permits until Sunday July 9, 2023 at 7:00 p.m.

(c) From Wednesday July 12, 2023 with pick up by 5:00 p.m. or earlier if the mother’s work schedule permits until Friday July 14, 2023 at 7:00 p.m.

(d) From Monday July 17, 2023 at 9:00 a.m. until Sunday July 23, 2023 at 7:00 p.m. The father shall bring Melanie to the mother’s home with sufficient clothing for a week and other items Melanie will want with her while in her mother’s care for a week. The mother will bring Melanie to the father’s home on Sunday July 23, 2023 at 7:00 p.m. but the items that accompanied Melanie to the mother’s home, other than something she must have with her in both homes, will remain with the mother at her home.

(e) From Wednesday July 26, 2023 at 5:00 p.m. or earlier if the mother’s work schedule permits, until Friday July 28, 2023 at 7:00 p.m.

(f) From Monday July 31, 2022 at 5:00 p.m. or earlier if the mother’s work schedule permits, until Sunday August 6, 2023 at 7:00 p.m.

(g) From Monday August 14, 2022 at 5:00 p.m. or earlier if the mother’s work schedule permits, until Monday August 21, 2023 at 7:00 p.m.

(h) From Monday August 28, 2023 at 5:00 p.m. or earlier if the mother’s work schedule permits, until Wednesday August 30, 2023 at 7:00 p.m.

(i) Commencing Monday September 4, 2023 at 5:00 p.m., Melanie will be in the mother’s primary care and the father’s week to week parenting time set out above will commence.

[256] The rest of the summer months of July and August 2023, Melanie shall be in her father’s care other than the times set out above in paragraph 255 when she shall be in her mother’s care.

[257] During July and August 2023, except for July 17, 2023, the party who is about to have Melanie in their care pursuant to this order shall pick her up from the other parent’s home at the beginning of their parenting time. This shall start on Sunday July 2, 2023 when the mother shall pick up Melanie from the father’s home for the commencement of her parenting time until July 4, 2023 at 7:00 p.m. when the father will pick up Melanie from the mother’s home for his parenting time.

[258] Commencing in September 2023, the father shall be responsible for picking Melanie up and dropping her off from the mother’s home for his parenting time.

[259] The father shall hold Melanie’s Canadian and Vietnamese passports and birth certificates and provide them to the mother upon reasonable requests to travel for a vacation or for some other reason for which she requires the documents. If the parties cannot agree on whether Melanie should be able to travel with the mother, the mother is permitted to bring the matter before the court.

[260] The mother shall be required to ensure that the father’s name and contact information is included in all official registrations of the child in daycare, school, with doctor’s etc.

[261] The mother shall not be permitted to obtain or renew any official or government issued documents for Melanie whether by the Canadian or Vietnamese Government including her passports, renewal of passports, reissuance or renewals of health cards and social insurance cards, and, birth registration documentation. The father shall have the sole authority to obtain these documents but shall do so with the mother’s consent and signature on the applications.

[262] Counsel for the mother shall deliver the child’s Canadian and Vietnamese Passports as well as her Canadian and Vietnamese birth certificates to counsel for the father who shall provide them to the father before the mother’s parenting time scheduled for July 17-24, 2023 begins.

[263] The mother shall hold Melanie’s OHIP card and shall provide the father with a copy.

[264] Pursuant to section 22 (2) of the Children’s Law Reform Act, the habitual residence of the child, Melanie Geniole Nguyen, born August 8, 2020, is and remains Ontario, Canada.

[265] No person shall change the habitual residence of the child, Melanie Geniole Nguyen, born August 8, 2020, from Ontario, Canada without further order of this court.

[266] Day to day decisions regarding Melanie shall be the responsibility of the parent who has Melanie in their care. Should a medical emergency arise for Melanie, the parent who has Melanie in their care shall as soon as is practicable give notice to the other parent.

[267] Both parents may attend Melanie’s medical appointments and programs. The mother shall provide as much notice as possible (in writing) to the father of appointments that are booked. The parties shall try to choose a date and time when both parties are available to attend.

[268] Both parties have the right as parents of the child, Melanie Geniole Nguyen, born August 8, 2020, to make inquiries and to be given information from the child’s health care providers, schools, and daycares, and other applicable third parties, about the child’s well-being, including in relation to the child’s health and education in accordance with subsection 20(5) of the Children’s Law Reform Act.

[269] Neither party shall remove Melanie Geniole Nguyen, born August 8, 2020, from the Province of Ontario without the other party’s consent which shall not be unreasonably withheld.

[270] The parties shall endeavour to agree on a comprehensive holiday schedule commencing September 2023. If they are unable to do so, the court will make a final order on this issue after hearing submissions on each party’s proposed holiday schedule. If the parties cannot reach an agreement within 20 days of the date of this decision, the trial coordinator will schedule a 60 minute appearance on the first date available to the parties for the court to hear submissions and rule on this issue. If they reach an agreement, they can request a final order by 14B Motion Form.

[271] The parties shall primarily communicate with each other in writing regarding the child, Melanie Geniole Nguyen, born August 8, 2020, by email, Facebook Messenger or Our Family Wizard. Neither party shall block the communications or addresses of the other party. The parties will keep their communication to issues regarding Melanie. The parties shall be respectful in their communications.

[272] The parties shall not criticize or make negative comments about the other parent or their family. They shall use their best efforts to shield Melanie from negative comments or criticisms of the other parent or their family when Melanie is in their care.

[273] The parties shall keep each other updated in writing of any change in phone number (land line or cell), email address and residential address. This shall be done immediately whenever there is a change.

[274] The mother shall keep the father advised of any changes to her immigration status.

[275] The mother’s passport shall remain with her counsel at Quinn Family Law until January 1, 2026. If the mother requires her passport for identification purposes to open a bank account or for such other non-travel purpose, a staff member from Quinn Family Law shall accompany the mother to the bank or other service provider. If Quinn Family Law is unable to continue to hold the mother’s passport, 60 days’ notice in writing shall be given to the father.

[276] For the period of January 1, 2021 up to and including December 1, 2021, the father shall pay the mother child support for Melanie in the amount of $254.00 per month based on an annual income $29,848.00 and the Child Support Guidelines.

[277] For the period January 1, 2022 up to and including February 1, 2022 the father shall pay the mother child support of $264.00 per month based on the father’s annual income of $31,000.00 and the Child Support Guidelines.

[278] Commencing July 1, 2023 and on the first of each month thereafter, the father shall pay the mother child support in the amount of $273.00 per month based on the father’s expected annual income of $32,000.00 and the Child Support Guidelines.

[279] Commencing March 1, 2022 and up to and including June 1, 2023, the mother shall pay the father $324.00 per month in child support for Melanie based on the mother’s current annual income of $36,864.00 and Child Support Guidelines. She shall receive credit against this order for amounts paid during this period directly to the father for which there is documentary evidence or through the Family Responsibility Office.

[280] If either party is seeking costs of the trial, they shall serve and file costs submissions not exceeding five pages not including Offers to Settle or a Statement of Costs within 20 days of the date of this Judgment. The cost submissions shall be filed with the court by delivering a hard copy to the Trial Coordinator’s offices.

[281] A party responding to a claim for costs shall have 20 days to serve and file their response which shall not exceed five pages not including Offers to Settle or a Statement of Costs. The responding submissions shall be filed with the court by delivering a hard copy to the Trial Coordinator’s offices.

Released: June 29, 2023

Signed: Justice Melanie Sager