WARNING

The court hearing this matter directs that the following notice be attached to the file:

The court has ordered the exclusion of the public from the hearing of this case under subsection 135(2) of the Courts of Justice Act and has expressly prohibited the disclosure of any information about the identity of the child. This subsection and subsection 135(3) of the Courts of Justice Act, which deals with the consequences of failure to comply with subsection 135(2), read as follows:

135.— (2) EXCEPTION — The court may order the public to be excluded from a hearing where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public.

(3) DISCLOSURE OF INFORMATION — Where a proceeding is heard in the absence of the public, disclosure of information relating to the proceeding is not contempt of court unless the court expressly prohibited the disclosure of the information.

Subrules 31(5) and 31(6) of the Family Law Rules state as follows:

31.— (5) Contempt orders.— If the court finds a person in contempt of the court, it may order that the person,

(a) be imprisoned for any period and on any conditions that are just;

(b) pay a fine in any amount that is appropriate;

(c) pay an amount to a party as a penalty;

(d) do anything else that the court decides is appropriate;

(e) not do what the court forbids;

(f) pay costs in an amount decided by the court; and

(g) obey any other order.

(6) WRIT OF TEMPORARY SEIZURE — The court may also give permission to issue a writ of temporary seizure (Form 28C) against the person’s property.

Ontario Court of Justice

Date: March 1, 2024 Court File No.: Toronto D 42398/22

Between:

D.P. Applicant

— AND —

K.G. Respondent

Before Justice Paulseth

Heard on February 12, 13, 14, 15, and 16, 2024 Reasons for Judgment released on March 1, 2024

Counsel: Lisa Allegro..................................................................................... counsel for the applicant K.G. ............................................................................................................... on her own behalf

Paulseth J.:

Overview:

[1] The parties are the parents of one child, LP, born […], 2019. They were in a common law relationship for about 9 months which ended May 4, 2019. LP is a happy and healthy four year old who is now in junior kindergarten.

[2] The parties met when the applicant/father (DP) was in his late 50’s and the respondent/mother (KG) was in her late 30’s. DP had just started a second career as a real estate agent. He has two adult children from a previous relationship. KG was completing an undergraduate degree and also had a previous career. She has now obtained a graduate degree in counselling and has opened her own psychotherapy practice.

[3] On April 1, 2020, the parties entered a Separation Agreement (#1), which included:

(1) joint parenting, (2) parenting time to DP of short intervals, (3) table (according to the Child Support Guidelines or CSG) child support and section 7 (CSG) expense contributions, and (4) Spousal support for KG.

[4] On February 4, 2021, the parties entered into an amending Agreement (#2).

[5] On April 22, 2021, the parties entered into a further amending Agreement (#3) which replaced #2. The agreement sets out parenting terms, joint decision-making, child support and section 7 contributions, and spousal support. The parties agreed upon a de novo review of spousal support on January 1, 2023.

[6] In February 2022, DP began this court proceeding, seeking, among other items of relief, an urgent motion to resume his parenting time. The parties reached a temporary agreement on that issue.

[7] On October 27, 2022, DP brought a motion for overnight parenting time with LP. The motion was successful and the court ordered costs against KG. The court also removed restrictions from DP’s parenting time, such as giving KG a right of first refusal. KG was directed not to change the child’s daycare without DP’s consent.

[8] About this same time, KG made a complaint to the Children’s Aid Society of Toronto (CAST) about DP. The allegation was investigated and the file closed with no concerns noted about him.

[9] A second complaint was made to the CAST by KG about DP in January 2023. Again, the file was closed after the investigation.

[10] A third complaint to the CAST by KG about DP in December of 2023 was also closed after an investigation.

[11] DP has paid regular child and spousal support from May 2019 until February 2024. He has also paid certain expenses. The totals are as follows:

(1) $349,007.43 in spousal support, (2) KG’s taxes in 2019, 2020, and 2021; he agrees to pay her 2022 taxes, (3) KG’s moving costs from July 2019, #2 and #3 totalling $15,275.30, (4) Daycare and camp net costs of $13,292.68, (5) Nannies and sitters from May 2019 until August 2022 of $48,030.34, and (6) Credit card debt of $34,115.21. (7) All of above total $578,504.84

[12] By June 2023, this matter was set down for trial.

[13] It is DP’s position that the final orders should include:

(1) Joint decision-making, (2) Communication through Our Family Wizard (OFW), (3) His parenting time expanded to include: (a) a mid week overnight, (b) the third weekend of the month, from Friday to Monday, (c) all pick -ups and drop -offs to be at school, if possible, and (d) holidays to include Father’s Day weekend, two extra summer weekends, and time at Christmas. (4) CSG ongoing; to be based on his average annual income of $250,000. Section 7 expenses to be based on the greater of KG’s actual income or her imputed income of $60,000, (5) Credit card debt to be offset against spousal support; and (6) Spousal support to be terminated, effective January 1, 2023.

[14] It is KG’s position that:

(1) she should have sole decision-making responsibility for the child; (2) she agrees with DP on parenting time and holidays, but would like a virtual call with the child during the long weekends that he is with DP; (3) there should be a number of “parenting parameters” and a review in September of 2026; (4) DP’s income should be imputed at $350,000, as an average of the last three years and her income imputed at $15,000. Commencing March 1, 2024, ongoing child support should be based on DP’s income, imputed at $330,000; (5) Spousal support should continue until a consent or court order is made to change it, but with a review in December of 2027. The amount of monthly spousal support would begin at $8,500 commencing March 1, 2024, dropping to $7,000. in 2026 and $6,000 in 2027; (6) DP should pay her 2022 taxes of $13,475 plus any interest or penalties, as per agreement #3; and (7) She does not owe any credit card debt to DP.

[15] Issues for the court to decide:

(1) What parenting order is in LP’s best interests? (2) What are DP’s and KG’s incomes for the purpose of section 7 and CSG? (3) Is KG still entitled to spousal support and if so, for how long? (4) Are there debts/credits to be applied to the support calculations?

Parenting Evidence:

[16] A summary of DP’s evidence is set out as follows:

(1) He and KG met online in March of 2018. At that time, KG was finishing her undergraduate degree, having had a first career as an interior designer. They lived together from August of 2018 until May of 2019. They learned about the pregnancy in early June of 2018. It was unplanned. They parented together for about 3 months. (2) In September 2019, KG began a Master of Arts in Counselling Psychology program, graduating in 2021. In May of 2022, KG qualified as a registered psychotherapist with the College of Registered Psychotherapists of Ontario. In September 2022, she opened her own practice. (3) DP describes LP as happy and healthy. LP’s doctor advises that LP is in good health and his immunizations are up to date. (4) Reports from LP’s daycare from October of 2022 to June of 2023 are consistently positive. (5) DP describes LP’s favourite foods as pasta, lamb chops, chicken piccata, and waffles. LP has lots of energy and loves to play soccer and run outside. (6) In 2017, DP started his second career as a real estate agent. Previously he worked in marketing and advertising. He has two adult daughters from a previous relationship. He has a new partner DM, who has four children from a previous relationship. (7) DP feels he has had to fight for every modest increase in parenting time, citing the February and October 2022 court proceedings. He is convinced that without court orders, KG will find fault with his care of LP and resist his parenting time. (8) KG has made three different false allegations about DP to the local Children’s Aid Society of Toronto (CAST). DP has cooperated with all of the investigations. DP’s current partner and children have also been interviewed by the CAST. No concerns were found by the CAST and the files were closed. (9) In cross-examination, KG: (a) accused DP of not feeding the child dinner before returning him to KG on Sundays. DP denied this and indicated that the only time he hadn’t wanted to give him dinner was the time that KG wanted the visit to end at 4:00 pm; (b) accused DP of not being willing to communicate with her about the child. DP points to his evidence where she would send him hundreds of emails and even now wants a huge amount of communication that only leads to conflict. DP agrees with the current restriction of one message a week through Our Family Wizard (OFW), unless there is an emergency; (c) accused DP of charging her for his lumber and parking tickets paid by credit card. DP pointed out that those were not charged to her; and (d) accused DP of being disloyal to her and he apologised for hurting her. (10) DP believes that he and KG can make joint decisions for the benefit of LP, because: (a) Every agreement has included joint decision-making; (b) On the large issues such as school, family doctor, and baptism, they have agreed; (c) He tries to be agreeable with KG’s requests; such as, her enrollment and withdrawal of LP from 4 different daycares, all at DP’s expense. This issue was finally the subject of a court order; and (d) For extra-curricular activities, DP agreed to soccer camp but KG withdrew him due to safety concerns. Unfortunately, KG did not tell DP about this until his next scheduled pick- up time. (11) Communication between the two parents has been difficult at times. DP cites KG’s penchant to send numerous emails and text messages as a problem. At one point, DP says he was receiving hundreds of communications from KG and she wanted a reply in a timely manner to each one. For example, DP counted 91 emails in June 2022, 135 emails in July 2022, and 120 emails in September 2022. (12) DP sought and received a court order to use Our Family Wizard with a maximum limit of one message a week. (13) DP has blocked KG from his phone as he was receiving 10 -15 calls in a row. He found KG’s constant communications stressful. He said that her messages would often be accusatory and upsetting. (14) Examples of concerns expressed by KG to father included: (a) 10 messages she sent to DP about bed rails and bedroom safety. DP responded that he has a bed rail and the mattress is on the floor. He said his home also has numerous night lights and hall lighting. After this response, KG sent 4 lengthy emails to DP’s counsel; (b) KG sent 17 messages accusing DP of depriving the child of food or water, feeding LP spoonful’s of salt, and overuse of Tylenol; and (c) KG has said that the child reports DP and/or DM hurting him or placing him in dangerous situations. (15) DP can describe many activities that he and his partner, along with their blended and extended families, enjoy with LP: playing in the park, local attractions, tennis, soccer, football and baking. There is also a family cottage where DP and his daughters spend many weekends. (16) The exchanges of LP for visits with DP have been characterized by, at the very least, tension and delay and, at the worst, by KG screaming and shouting insults and dragging out the goodbyes to the child. When the child calms down, KG will ask for one more hug. (17) DP expresses concern about KG’s negative comments and criticisms not just about him and his partner, but of all of the daycares, the sports camp, the CAST, and now the school social worker. (18) DP would like to increase his parenting time to three overnights together on one weekend and maintain the mid- week overnight. This would decrease the number of exchanges between the parents and allow DP to use the school or daycare for pick ups and drop offs. He appreciates that this may require a gradual increase.

[17] DP called additional witnesses on the parenting issue. Their evidence can be summarized as follows:

DM. (1) DP’s partner, DM. is a lawyer, employed in a senior position in a financial institution in Toronto. She has four children from a previous marriage; all of whom are attending post-secondary institutions. She and DP have lived together since December of 2021. She and DP are both very close with each other’s children. They spend time together playing or watching sports, dog-sitting, and just talking. (2) DM is very close to LP. He shares many important things with her. (3) DM has observed the close relationship between DP and LP. She describes DP as an affectionate and patient parent. (4) DM describes the extremely negative impact that KG’s false allegations and disturbing comments have had on she and DP. She has observed DP’s anxiety attacks and countless worries DM has witnessed KG start to scream at DP at the beginning of an exchange, in front of the two year old child, LP. (5) DM herself has been negatively impacted by KG’s constant messages of criticism, and denigration.

Megan P. (6) Megan is one of DP’s older children from his marriage. She speaks very highly of both her parents and their ability to co-parent although living separately. (7) Megan has a very close relationship with LP and sees him whenever she is home, which was about 6-12 times a year when she was at the University of Guelph, plus holidays. (8) Megan describes DP and DM. as very generous and supportive people. (9) On many occasions, KG tried to involve Megan in the disputes that KG and DP were having. Megan did not appreciate this and felt that KG was being manipulative. (10) Megan was interviewed by the CAST in January of 2023. Megan told the worker that she was shocked by KG’s allegations which she considered to be “far from the truth”.

Carlos L. (11) DM’s son Carlos L filed an affidavit speaking to the warm and supportive relationship that he has with his mother. (12) Carlos has dinner once a week with DP and DM and often sees LP and DP’s daughters. He finds DP to be welcoming and generous. (13) Carlos has also been able to observe the close relationship that DM and DP have with LP. He observes them to always maintain a safe and child focused environment for LP.

[18] A summary of KG’s evidence is set out as follows:

(1) She believes that, when assessing the communications between she and DP, she must conclude that he is controlling and abusive. (2) DP was abusive before and after the birth of LP. By this term, she appears to mean emotionally abusive. (3) After the separation, DP has used their communications and contacts to continue his pattern of abuse and controlling behaviour. (4) DP once wiped hand sanitizer on her face after she questioned his compliance with covid restrictions. (5) DP is aggressive and demeaning in his comments to her. (6) DP has accused her of exaggerating the child’s illnesses and keeping him home from school unnecessarily. She maintains that this is not true. (7) KG said that LP became depressed during the summer of 2021 on days when he had to go to DP’s home. By the summer of 2022, this became an extreme negative reaction with him screaming and saying he was “scared” and that both his dad and DM hit him. KG did not approve of the investigation conducted by the CAS as it included leading questions and was conducted in a room next door to where the DP and DM were. KG made a recording of the child screaming hysterically. (8) In August 2022, KG again made a recording of the child’s statement that he had a bruise from DP pushing him into a dryer. The child drew a picture of where DM hurts him. Again, the CAST investigated. (9) DP has not always been timely in his consent to major decisions. For example, DP did not readily agree to change the child’s paediatrician to KG’s family doctor. KG wanted the change because it would be easier for her and the child to go together as they are often sick at the same time. (10) In January of 2022, LP was taken to the hospital with croup symptoms. KG had to text DP’s daughter to get him to phone her as DP had blocked her number. KG wanted DP to come to the hospital immediately, but DP did not. (11) When LP was only two, KG called an ambulance because the child had a fever and was lethargic, screaming, and inconsolable. In KG’s view, DP did not respond to her soon enough in this situation. (12) These examples cause KG concern about DP’s stated intention to contact her when there is an emergency. (13) She would like to at least have a virtual call during the long weekend parenting time that LP spends with father. (14) She cites a number of concerns about the various daycares and camps from which she withdrew the child: lack of safety railings, construction near the playing site, toilets in an open concept room, and lack of supervision. (15) She advised DP that the adult twin bed for LP without rails and with a glass table nearby was inappropriate and unsafe. DP denied this was the room set up. (16) She has not found DP cooperative around section 7 expenses for swimming and camp. She believes he delays making payments. DP says he is waiting now to see if she will withdraw the child. (17) DP only wants one message a week on OFW, which formed part of a temporary order in these proceedings. He has told KG he won’t read them until Monday of each week. (18) KG views DP as only seeing LP for very limited amounts of time, leaving KG with over 90% of the parenting. She is happy to consult with DP but doesn’t want joint decision-making. (19) KG disagrees with DP’s request to have the child in aftercare program. KG would like to continue to pick him up from school at 3:30 pm. DP wants to pick up the child from daycare on the Tuesday and Friday visits, so as to minimize exchanges between the parents. The cost is only $250. a week. (20) KG also complains that DP is often late or early for pick ups. The use of the daycare would alleviate that stress for KG. (21) KG complains that DP does not include LP in his family time with his and DM’s other children.

[19] KG called several witnesses, whose evidence is set out as follows:

Kelly D. (1) Kelly D. is KG’s maternal aunt and deposed that she was a certified social worker, with experience in domestic violence. (2) In cross-examination, Kelly D admitted to only having a certificate from Fleming College in social services. She did not seem to know the difference. Further, she has not met DP nor seen him with the child. All of her information comes from KG.

Shai D. (3) Shai D. is a long-time friend of KG’s and he gave evidence. He has witnessed 5 to 10 parenting exchanges since December of 2020. Each exchange took maybe 5 to 10 minutes. Some of these exchanges he witnessed through the window. (4) Shai D. bases his opinions on what KG tells him and shows him in emails. He thinks that KG misses out on a lot of life because she will never leave the child with a babysitter. Instead, she will have a babysitter watch LP while she is in her bedroom. He agrees with KG that LP needs to speak to a therapist.

Isabelle S. (5) Isabelle S. babysat for KG during the summer of 2022 while KG was working in her bedroom. This witness saw 2 or 3 parenting exchanges at the door with DP and observed the child to scream and cry and refuse to put on his shoes. (6) On one occasion, during that same summer, KG called Isabelle to come over in the evening to witness DP bringing the child back to KG. DP was very late.

CAST Records

[20] There have been three investigations conducted by the CAST, following allegations by KG that DP and/or his partner are harming the child or causing the child to be at risk of harm: October of 2022, January of 2023, and December 2023.

[21] In the first report, KG made her complaint just hours after DP filed his materials for a motion to be heard on October 27, 2022. KG alleged that DP and/or his partner were hurting the child. The CAST found the disclosure to be false and indicated that LP was well cared for and loved by both parents.

[22] In January 2023, KG complained to the CAST that DP’s partner harmed the child. Again, the file was closed without any concerns. This time, a broader investigation was undertaken, including interviews with both DP and DM’s children and DP’s ex-wife. The CAST concluded that LP was “happy and comfortable in the care of DP and DM”. Around this same time, KG reported that LP had threatened to “get a gun and shoot DM”. This was so worrisome that DM reported the threat to the police.

[23] Since this time, DP has installed video cameras in his home and hired a nanny to supervise some of the visits, so that future allegations can be avoided or at the very least, defended.

[24] The most recent allegation came to the CAST on December 1, 2023. KG alleged that both DP and DM are harming the child, including physical discipline. The file was quickly closed. In the CAST records, the child is reported to have said “someone told me to lie”.

School reports

[25] In November 2023, LP’s school placed him on an in-class Individual Education Plan (IEP). The purpose of this IEP is to support LP and help him to better manage his behaviour and emotions around routines and transitions. He has separation anxiety when leaving KG and difficulty managing big emotions.

[26] The IEP indicates that LP’s areas of need are: self-regulation skills, transitions, time management, following adult direction, and prompts to follow rules and routines. His behaviour was described as “standing on tables/kicking when upset”.

[27] In the February 2023 report, LP is noted to have more than 15 late attendances.

Legal Framework for Parenting

[28] Subsection 18 (1) of the Children’s Law Reform Act, 1990 (CLRA) defines decision-making responsibility as follows:

“decision-making responsibility” means responsibility for making significant decisions about a child’s well-being, including with respect to,

(a) health, (b) education, (c) culture, language, religion and spirituality, and (d) significant extra-curricular activities;

[29] Section 20 of the Act reads as follows:

Equal entitlement to decision-making responsibility

20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to decision-making responsibility with respect to the child.

Rights and responsibilities

(2) A person entitled to decision-making responsibility with respect to a child has the rights and responsibilities of a parent in respect of the child, and must exercise those rights and responsibilities in the best interests of the child.

Authority to act

(3) If more than one person is entitled to decision-making responsibility with respect to a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child.

If parents separate

(4) If the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other, the right of the other to exercise the entitlement to decision-making responsibility with respect to the child, but not the entitlement to parenting time, is suspended until a separation agreement or order provides otherwise.

Parenting time

(5) The entitlement to parenting time with respect to a child includes the right to visit with and be visited by the child, and includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education.

[30] Subsection 21 (1) of the CLRA reads as follows:

21 (1) A parent of a child may apply to a court for a parenting order respecting,

(a) decision-making responsibility with respect to the child; and (b) parenting time with respect to the child.

[31] Any decision with respect to parenting children must be based on the best interests of the particular child before the court in accordance with the considerations set out in section 24 of the CLRA.

[32] Subsection 24(2) of the CLRA 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.

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

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; (d) the history of care of the child; (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (g) any plans for the child’s care; (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child; (j) any family violence and its impact on, among other things, (k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

[34] Caselaw indicates that this list is not exhaustive and should not be used as simply a mathematical exercise. See: White v. Kozun, [2021 ONSC 41]; Pereira v. Ramos, 2021 ONSC 1736. Phillips v. Phillips, [2021 ONSC 2480].

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

[36] Subsection 28(8) of the CLRA provides:

Right to ask for and receive information

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

(a) any other person to whom decision-making responsibility or parenting time has been granted with respect to the child under a parenting order; and (b) any other person who is likely to have such information.

[37] Subsection 33.1 (2) of the CLRA addresses the importance of the parties protecting children from conflict. It reads:

(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.

[38] Subsection 24 (6) of the CLRA 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.

[39] An equal-parenting time plan requires a high level of communication and coordination between the parties, particularly when the child is very young. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child. See: L.B. v. P.E., [2021 ONCJ 114]; L.I.O. v. I.K.A., [2019 ONCJ 962].

[40] 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. Moreover, the child has a right to have contact with both parents. See: Klymenko v. Klymenko, [2020 ONSC 5451] and Jafari v. Dadar [1996] N.B.J. No. 38 (NBQB).

[41] A custodial parent must not just accommodate access, they must facilitate it. See; Scrivo v. Scrivo, [2012 ONSC 2727], 2012 CarswellOnt 5545; Tran v. Chen, [2012 ONSC 3994], 2012 CarswellOnt 8551.

The Child

[42] DP describes the child as happy and social with a love of family and sports. He reports no unusual management issues.

[43] KG describes the child as suffering anxiety when he has to leave her for school or parenting time with DP. She thinks of LP as medically vulnerable as he has had croup in the past; once probably caused by the covid virus.

[44] LP, as a four year old child, is struggling with behaviour and self-regulation in junior kindergarten.

Credibility and Reliability

[45] KG has made a number of false allegations against DP. Three of these have been investigated by CAST and found to be false.

[46] KG claims the child has a serious illness (croup) when the paramedic records do not support that view. It is a worry when a small child is sick, but KG becomes very dramatic and insists on immediate support from DP and his family.

[47] KG’s instinct is to over communicate and send hundreds of emails, when one would suffice. Communication between the two parents has been difficult at times. At one point, DP says he was receiving hundreds of communications from KG, and she wanted a reply in a timely manner to every one. For example, DP counted 91 emails in June of 2022, 135 emails in July of 2022, and 120 emails in September of 2022.

[48] Mother’s own witness said she would not leave the child with a babysitter to attend his wedding. Until the recent part time daycare, mother never left the apartment without the child even when she had an array of nannies and sitters.

[49] KG casts blame on many people in her hypervigilance to protect the child; for example, daycares, camps, and the school social worker.

[50] KG has suggested therapy for a small child. She explained that this would be a way of capturing evidence against others from an objective third party.

[51] For these reasons, where there is a discrepancy between DP and KG, the court prefers DP’s account.

Best Interests of LP

The Child’s Needs

[52] LP is a young child who is already struggling with behaviour in junior kindergarten. Like all children, he needs routines and consistency in having his needs met.

[53] DP recognizes that LP needs emotional security and the self-confidence to express himself without acting out.

[54] KG sees a child who is very emotionally dependent upon her. She does not recognize the negative impacts of that insecurity.

[55] In some ways, the child is meeting KG’s needs rather than the reverse.

The Child’s Relationships

[56] The child has lovely appropriate relationships with DP’s extended family. DM and two older children speak warmly about their time with LP.

[57] KG does not address the child’s relationships with her family, except the maternal aunt. KG mentioned paying for Uber to bring the maternal grandmother to her house to babysit.

Each Parent’s Willingness to Support the Other Parent

[58] Both parents express the desire to support the other parent’s relationship with the child.

[59] KG, however, sees, many problems with DP’s relationship with the child. None of her concerns are supported by the evidence.

[60] KG also enables the child to feel separation anxiety when he leaves her.

Communication and Cooperation

[61] KG speaks about communication and cooperation but she can quickly become excessive and dramatic. Her emails become insistent and repetitive, to the point of harassment and manipulation.

[62] DP has had to reign in his irritation with KG and her demands. DP, with the support of his family, does attempt to communicate in civil terms. Unfortunately, he has been the victim of KG’s false abuse allegations and this has made him defensive and rightly vigilant. He lives with video cameras in his house.

The Plans for the Child

[63] KG does not outline a plan for the child, except to continue as is. She likes the child’s school for now and her family doctor treats them both.

[64] DP has regular family get-togethers and holidays at a family cottage. He and his partner plan special movie nights for LP. LP picks the treats. There is a great sense of joy in their house.

[65] KG is watchful and anxious about her and LP’s life. This has not translated into any concrete plans, except to maybe work part time.

[66] KG would like virtual time with LP while LP is spending a weekend at DP’s home. This would not be in LP’s best interests because KG would quickly escalate the situation and her own anxiety would create anxiety for LP.

Any Family Violence?

[67] KG has convinced herself and her friends that DP is emotionally violent to her and possibly physically violent. There is no evidence to support that view.

[68] Rather, KG’s evidence is that she harasses DP and is constantly accusing him and others of having a negative impact on the child.

[69] There is no evidence to support KG’s view that DP is in some way emotionally or physically violent to the child. In fact, her repeated false allegations lead to a concern about emotional harm to LP caused by KG.

Ability to Act as a Parent

[70] The court has many concerns about KG’s ability to act as a parent, based on the following:

(1) Her over vigilance, (2) The number of false allegations made to the CAST, (3) Her own lack of emotional self-regulation, (4) Her constant impulse to place the child into the adult conflict, and (5) Her frequent changes of service providers for the child.

[71] The court has no concerns about the father’s ability to act as a parent.

Shared Decision-making:

[72] The Court of Appeal in Kaplanis v. Kaplanis [] provided the following considerations when the court is asked to make a joint or shared decision- making order:

1. There must be evidence of historical communication between the parents and appropriate communication between them.
2. It can’t be ordered in the hope that it will improve their communication.
3. Just because both parents are fit does not mean that joint custody should be ordered.
4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
6. The younger the child, the more important communication is.

[73] Other cases have provided additional guidance; such as:

(1) Joint or parallel parenting orders may be necessary to keep a parent in the child’s life (Ursic v Ursic, 2006 CanLlI 18349, OCA) or prevent a parent from being marginalized (C(D) v. C(H), [2014 ONSC 6696]); (2) If the conflict between the parents is primarily the fault of one parent, a joint custody order would prevent one parent from engineering a favourable result (see Geremia v. Harb, [], 2008CanLII19764 (Ont. SC); (3) Where one parent has a fundamental disrespect for the other, this can lead to gatekeeping and a deliberate plan to minimize the other parents involvement (See: J.Y. v. L.F.-T., [2019 ONSC 1718]); (4) Shared decision-making can be used to right an imbalance of power in a relationship (see: Garrow v. Woycheshen, [2008 ONCJ 686], Hsiung v. Tsioutsioulas, [2011 ONCJ 517]); and (5) Shared parenting may be achievable after the stress of litigation is over (see Growen v. MacKenzie [2008 ONCJ 170] (OCJ)).

[74] In this case, the evidence points to KG as the parent who places this child at risk by creating and enabling constant conflict with the father. Father has been consistently civil and willing to co-parent.

Conclusion on Parenting Issues

[75] The paramount importance of the child’s best interests leads to a conclusion of joint decision-making in this case, based on the following:

(1) The child’s stability and security demand the presence of DP to counter balance KG’s hysteria and imagined concerns. (2) The day to day issues can be managed by restrictions on communication. (3) The larger issues have been the only ones that the parents have agreed upon in the past. The fact that DP delayed in agreeing to the doctor change was actually the result of his focus on the child’s best interests. The child’s pediatrician was familiar with the child and very good. (4) DP will protect the child from the KG’s erratic and unreasonable conduct. (5) DP will protect the child from KG’s inevitable difficult relationships with service providers for the child.

[76] The parents have agreed upon the parenting time schedule, as requested by DP. The court agrees that the proposed schedule is in LP’s best interests.

[77] KG has sought a right of first refusal for babysitting. The court does not find that such restrictions are in LP’s best interests because:

(1) They add to the day to day communications and stress between the parents; (2) Both parents can be trusted to have responsible caregivers for the child when necessary; and (3) It is a normal part of a child’s life to have babysitters and for parents to work or to go out on his or her own personal time.

[78] It is not in LP’s best interests to have contact with his mother during his parenting time with father. This proposed contact by mother would only escalate both of their anxieties.

[79] It is not in LP’s best interests to fix a review date of the parenting time as requested by KG. Any prospect of future litigation will only become a focus for conflict and competition for KG.

Financial Evidence

DP’s Income:

[80] Prior to 2022, DP was a self- employed realtor. Due to regulatory changes, he was able to incorporate his business and did so in 2022.

[81] DP retained an expert in income valuations. KG did not disagree with the expertise of this accountant and he was qualified in this court proceeding.

[82] This witness took the court through DP’s sources of income and expenses, including those pre-tax expenses that can be available for income, pursuant to section 19 of the CSG.

[83] The witness concluded that DP had income of $248,178 available for support in 2022. This is also the number to be used for 2023, as certain fiscal year documents were not available at the time for use in forecasting for 2023.

[84] KG disputes DP’s income figure and wants DP’s income to be imputed at the average of the gross incomes from his business in 2020, 2021, and 2022. She complains that the valuator used income tax reports. For expenses that were added back into income, the valuator relied on DP’s reports. These amounts were also grossed up for income tax.

[85] DP’s owns 2% interest in a company named Oretta. It is settled law that, unless there is evidence that a minority shareholder can influence the amounts paid out, then it is not included as income (See Kowalewich v Kowalewich [2001 BCCA 450]). This company has not paid dividends in 5 years. The valuator noted this legal interpretation and followed it.

[86] A bonus that was not paid out until a later year was not included in the valuators’ assessment of available income for CSG purposes.

[87] KG did not question the valuator with many of her concerns.

KG’s Income

[88] KG obtained a counselling degree after LP was born. She is in private practice for herself. She is still in the “qualifying” stage because she has yet to take her final licencing exam. She said that she did not take this exam in 2023 due to the care of LP and the time needed for this litigation. This means that she requires some supervision of her treatment plans.

[89] In 2022 and 2023, KG has earned less than minimum wage income. In her current financial statement, KG notes a monthly income of $2,192. She charges between $120 and $150 a session, which last 50 minutes. This averages to about 18 sessions, or one session a day in an 18 day work month. Her goal is to increase to 3-4 sessions a day for three days a week. This would leave her with two days for planning and education.

[90] LP is at school from 9:00 am until 3:30 pm. DP has paid for nannies and babysitters since the child’s birth. LP was in part time daycare from November of 2022 until June 30, 2023 and in full time day camp during the summers of 2022 and 2023. DP has paid in total about $48,000 for nannies, babysitters, and day camps.

[91] DP asks to impute KG with income of $35,000 in 2022 and $60,000 in 2023.

[92] In reviewing KG’s financial situation, the evidence included the following:

(1) She is spending about $27,600 annually on food and meals. She often has meals delivered to her home. (2) When presented with the Canada Food Price report, she recognized that her spending was $10,000. more than an average family of four would spend on food annually. (3) In her budget, she proposes to spend about $36,000 annually on food.

Credit Card Debt

[93] In their original agreement (section 6.4), the parties accepted that DP would continue to pay credit card charges made by KG and deduct these amount from his support payments. The plan was for KG to obtain her own credit card but that did not happen. Instead, DP would receive the statements and highlight her spending with an accounting for the net payments.

[94] KG agreed in cross examination that this provision of the Agreement continued to be in effect although other sections were amended. See section 1.7 of the two amending agreements.

[95] The evidence provided by DP shows that between May 1, 2019 and April 30, 2021, KG owes DP $34,115.21 in unpaid credit card debt. KG questions the parking and lumber items as belonging to DP, but she doesn’t appreciate that the expenses are divided by the cardholder name and she has one of DP’s cards in her name.

[96] KG did not provide evidence on this point.

Legal Framework on Financial Issues:

Child Support and Incomes

[97] The Family Law Act (FLA) and the Child Support Guidelines (CSG) govern the obligations of a parent to pay child support to the extent that the parent is capable of doing so. An order for child support must be in accordance with the CSG, which is essentially guided by the income of the payor.

[98] A review of the case-law respecting business deduction claims reveals a general theme that in determining whether expenses should be added back into a parent’s income for child support purposes, an important consideration is whether there is a benefit derived from the business expenses that employed people would have to cover from their personal income. See: Izyuk v. Langley, [2015 ONSC 2409].

[99] A self-employed person has the onus of clearly demonstrating the basis of his or her net income. This includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes. See Whelan v. O’Connor, [], [2006] O.J. No. 1660, (Ont. Fam. Ct.). The self-employed have an inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the recipient can draw conclusions and the amount of child support can be established. See: Meade v. Meade (2002) [], 31 R.F.L. 5th 88 (SCJ).

[100] The income analysis does not end there. It is appropriate where personal expenses have been unreasonably deducted to add them back to the income and to gross-up the payor’s income by the tax he or she would have paid, but for the deduction. This is done to ensure consistency of treatment where a party is found to have arranged his affairs to pay less tax on income. See Sarafinchin v. Sarafinchin, [], [2000] O.J. No. 2855 (Ont. S.C.).

[101] In a recent decision, Justice L. Madsen, (Sundberg v. Sundberg [2023 ONSC 5518]), commented on the appointment of a valuator as necessary for fairness and clarity. In that case, the respondent had income from several sources, including self- employment income as a realtor with his own company. The court discussed the onus on the income earner to show the true value of his business and the deduction of personal expenses.

[102] In this case, KG wanted a valuator and DP went ahead and retained one. There is no suggestion in the evidence that the valuator was not independent nor unknowledgeable.

[103] In cross-examination, KG had very few questions for the valuator.

[104] The court accepts the valuator’s evidence of DP’s income for 2022 and projected to 2023, as $248,178. DP agrees to pay table amount of child support according to section 4 of CSG on this income; specifically, $2,006 per month.

[105] With respect to KG’s income, it is DP’s position that she is underemployed. The onus is on DP to show this.

[106] Section 19 (CSG) provides that the court may impute to a spouse “such amount of income … as it considers appropriate” and provides a non-exhaustive list of such circumstances.

[107] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. See: Drygala v. Pauli, [], [2002] O.J. No. 3731, Ont. C.A.).

[108] The court finds that:

(1) KG has made little effort to work outside the home. (2) KG has had the benefit of more than 4 years of spousal support, nannies, camp, and babysitters to allow her to obtain both a post graduate degree and counselling experience. (3) KG could have written her qualifying exams before now but has been vague on her reasoning for not doing so. The excuses lack merit. (4) KG does not agree to ongoing daycare, such that, she could work and DP could work. (5) KG spends an inordinate amount of money on food and meal delivery services. (6) KG couldn’t recall the correct amount of spousal support she has been receiving. (7) KG knew that a de novo review of spousal support was set for January 2023.

[109] The court finds that KG is intentionally underemployed and cannot justify her current situation. Her plans are to continue to be underemployed.

[110] The court agrees with DP’s analysis that KG should have been earning slightly more than minimum wage in 2022 of $35,000 rising to $60,000 thereafter from January 1, 2023. These amounts are very modest expectations given her level of education and the financial support provided to her by DP.

[111] In conclusion, the court fixes the following amounts for child support:

(1) Commencing January 1, 2022, DP’s income is $248,178 and KG’s income is $35,000; (2) Commencing January 1, 2023, DP’s income is $248,178 and KG’s is the greater of her actual income or $60,000; (3) Commencing January 1, 2023, the section 7 (CSG) expenses are to be shared proportionately with DP paying 88% and KG paying 12%; (4) Commencing March 1, 2024, DP pays table support of $2,006. a month (5) Any re-calculations of child support and section 7 expenses will be retroactive to January 1, 2023 and can be applied against ongoing support, subject to a total maximum adjustment of $500. a month; (6) Table child support and section 7 expenses shall be adjusted as of July 1st each year based on the previous year’s incomes and according to the annual disclosure section.

Spousal Support

[112] Spousal support is intended to address financial inequity following the end of a relationship.

[113] Section 30 of the Act states that every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.

[114] Subsection 33 (8) of the Act sets out the purposes of spousal support as follows:

(1) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse; (2) share the economic burden of child support equitably; (3) make fair provision to assist the spouse to become able to contribute to his or her own support; and (4) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

[115] Spousal support is not merely a consideration of needs and means. In determining the appropriate amount of spousal support, compensatory and non-compensatory considerations should be taken into account in an effort to equitably alleviate the economic consequences of the breakdown of the relationship. See: Rioux v. Rioux, [2009 ONCA 569], [2009] 97 O.R. (3d) 102 (OCA). Entitlement can be based on compensatory, non-compensatory or contractual grounds. See: Bracklow v. Bracklow, [].

[116] Where compensation is not the basis, a support obligation may arise from the marriage relationship itself when a spouse is unable to become self-sufficient. It can be based on need. Under this model, spousal support will be based on economic hardship resulting from the breakdown of the marriage, but not necessarily the roles assumed during the marriage. See: Bracklow, supra.

[117] In determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient’s ability to support herself, in light of her income and reasonable expenses. See: Gray v. Gray, [2014 ONCA 659].

[118] A basic principle of spousal support law is that the recipient must make reasonable efforts to become economically self-sufficient. See: Dingle v. Dingle, [2010 ONCJ 731].

[119] The legal considerations for the entitlement to compensatory support was reviewed by Chappel J. in Thompson v. Thompson, [2013 ONSC 5500], at paras. [55-59].

[120] The compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. A compensatory award recognizes that such sacrifices, contributions and benefits conferred often lead to an interdependency between the spouses and merger of their economic lives.

[121] In considering whether a compensatory claim exists, the court must undertake a broad and expansive analysis of advantages and disadvantages which each party experience throughout the relationship as a result of the marital union.

[122] Compensatory support ought not to be varied (unless there is an inability to pay) since it will have been awarded to recognize the length of the marriage and the roles adopted throughout the marriage. These factors are retrospective.” (See S.N.S. v. K.N.S., [2023 ONCJ 55] at 37-41).

Findings on Spousal Support

Entitlement:

[123] The first question is whether KG is still entitled to spousal support?

[124] Both parties agreed to a de novo review of spousal support after 4 years. The relationship was very short, about 9 months. KG would now like an increase in spousal support for a further 5 years after the agreed upon de novo date.

[125] Can KG continue to show a compensatory or non-compensatory claim? The evidence indicates that:

(1) Her original claim was based on her responsibilities as a primary parent of a new child, after a very brief relationship; (2) She will continue to have that responsibility into the future. The child is now only 5 years old. (3) DP has given KG almost $350,000 in spousal support since May 2019. (4) In addition to table CSG, DP has also paid for KG over $28,000 in taxes, moving expenses, and food stipends, as well as $48,00 for nannies and babysitters since May 2019. (5) KG obtained her counselling education, but delayed obtaining her qualifying license. (6) KG couldn’t recall the amount of her spousal support until it was pointed out to her in cross examination. (7) KG is only scheduling less than one session of 50 minutes a day during the school week. KG refuses to agree to daycare for afterschool such that she could perhaps work. (8) KG is only being imputed at slightly more than minimum wage for 2022. (9) KG has been unsuccessful in more than one motion before this court and was awarded costs against her. KG should have taken the clues and made more efforts to earn her income. (10) There is no reason given for KG’s request for more spousal support and for a longer period of time.

[126] Accordingly, the court finds that:

(1) DP has more than fulfilled his obligation to care for KG. (2) KG has made few, if any, efforts to earn her income. (3) There is no reason given for KG’s lack of effort. (4) Spousal support should terminate.

Credit Card Debt and Taxes

[127] KG owes DP $34,115.21 for the credit card debt from 2019-2021, for the reasons outlined above. This was preserved in their Agreement #3, and the parties agreed to apply the debt against support.

[128] DP agrees he owes KG $13,475.66 for her 2022 taxes which he had agreed to pay.

[129] The net amount owing by KG is thus $20,639.55 or 4 payments of $5,159.89.

Termination Date for Spousal Support

[130] For the reasons outlined above, there is no evidence to support extending spousal support for too long past the de novo review date of January 2023, except to take into account the credits and debts between the parties.

[131] The court orders that spousal support should be decreased to $5,159.89 for January, February, March and April of 2023, terminating on April 30, 2023, forever. This amount is fully offset by KG’s debt to DP of $20,639. Therefore, DP does not owe KG any spousal support after 2022.

[132] DP’s overpayment of spousal support from 2023 to date can be deducted from ongoing child support at the maximum rate of $500. a month.

RESP

[133] DP has begun his own RESP for LP. KG had wanted them to contribute to the same one but that is unnecessary.

Section 7 Expenses

[134] LP should be in before and after school daycare because:

(1) it will facilitate both parents working, (2) the routines and socialization will be in LP’s best interests, and (3) daycare obviates the need for the parents to personally make the exchanges for parenting time.

[135] The parents agree to share proportionately any uninsured medical and dental expenses.

[136] The parents agree to share proportionately the cost of summer camps and extracurricular activities, provided they have agreed to the expense in advance in writing.

[137] The parents shall pay the section 7 expenses proportionate to their incomes. Their respective shares are:

2022: DP - 88% and KG - 12% 2023: DP - 81% and KG -19%

SDO and Annual Disclosures

[138] A support deduction order (SDO) through the Family Responsibility Office (FRO) shall follow this order.

[139] The parties shall exchange their financial disclosure according to section 21 of the CSG by June 1st of each year and then adjust their support based on the previous year’s income as of July 1st of each year.

Life Insurance

[140] KG should be removed as the beneficiary of the current Desjardins policy […] and instead be placed as beneficiary on the Ivari policy […] in the amount of $287,779.

[141] The amount of life insurance should be reduced by 7.7% annually on the child’s birthday until LP turns 18 years of age.

[142] Counsel for DP may provide a draft order by 14B, approvals waived.

[143] If the parties cannot agree on costs, counsel for DP may serve and file submissions, of a maximum length of 3 pages, excluding Bills of Costs, and Offers within 14 days of receiving this order. KG may respond with the same limitation on page length served by email on counsel for the applicant within 14 days of receiving DP’s submissions. No reply. Both submissions to be filed in the trial coordinators’ office, by counsel for the father.

Released March 1, 2024.

Signed: Justice Paulseth