ONTARIO COURT OF JUSTICE

DATE: 2024-06-06

COURT FILE No.: Woodstock F01/23

BETWEEN:

Irene Strizzi Applicant

— AND —

Rocco Traetto Respondent

Before: Justice S. E. J. Paull

Trial held on: April 22-26, May 1, 2024

Reasons for Judgement on: June 6, 2024

Counsel: Applicant........................................................................................................... on her own behalf Meghann Melito................................................................................ counsel for the respondent

PAULL J.:

[1] The parties are the parents of two children, Logan born […], 2018 (five years old) and Lincoln born […], 2021 (almost 3 years old). The trial was heard over 6 days between April 22 and May 1, 2024.

[2] Ms. Strizzi seeks an order for joint decision-making with the children in her care on alternate weekends until she moves back to Brantford at which point there would be a shared parenting schedule, along with child support and spousal support payable by Mr. Traetto. Mr. Traetto seeks sole decision-making and primary residence with child support payable by Ms. Strizzi, and his spousal support obligation calculated on the basis of an imputed income on Ms. Strizzi.

[3] In addition to the parties the court heard evidence from Ms. Strizzi’s current partner, Joao Assis, her friend, Melissa Picard, Mr. Traetto’s partner, Antastasia Madieros, his mother, Mary Traetto, and immigration counsel Dhaman Khissoon.

[4] The court also received as evidence an OCL Report dated April 3, 2024. Neither party sought to cross-examine the clinician.

[5] The court also received a multitude of documentary exhibits from both parties. The respondent filed three volumes of document briefs but only those portions addressed and made separate exhibits were entered at this trial. The remaining documents in the volumes do not form part of the evidence.

[6] The parties have been subject to the following temporary orders:

1. February 14, 2023: temporary without prejudice order including terms that neither party remove the children from the province of Ontario or change their habitual residence outside of Oxford County. Neither party to expose the children to negative comments about the other parent or make posts on social media.
2. March 20, 2023: following argument of the motion a temporary order including a shared residential arrangement with the children with Ms. Strizzi for three of four weekends from Wednesday night to Monday morning and at other times with Mr. Traetto. Neither party was to change the children’s primary residence outside of Oxford County. Logan was to remain in school in Ingersoll. The parties were not to expose the children to negative comments or adult conflict. A temporary without-prejudice child support order payable by Mr. Traetto to Ms. Strizzi in the amount of $1255 per month commencing April 1, 2023 and interim without-prejudice spousal support payable in the amount of $1286 commencing April 1, 2023.
3. July 17, 2023: a temporary without prejudice order that the parties not record the children’s communications with either parent.
4. November 8, 2023: following argument of a motion to vary the support order a temporary order was made varying the order of March 20, 2023. Commencing October 1, 2023 spousal support was reduced to the amount of $546 per month, with child support remaining the same.
5. March 19, 2024 the court heard a motion brought by Mr. Traetto to prohibit the relocation of the children from Brantford to Kitchener. A temporary order was granted that the children’s primary residence remain in Brant County, and for the purposes of school registration the children’s primary residence shall be with Mr. Traetto. Logan was to finish school in Oxford County and start school in Brant in September 2024.

The Law

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

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

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

Factors

(3) Factors related to the circumstances of a child include,

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

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

(l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

[10] The following non-exhaustive list of factors have been articulated in the case law as basic principles with respect to the best interest test:

1. The child’s best interests are not merely “paramount” – they are the only consideration in this analysis: Gordon v. Goertz, [1996] 2 S.C.R. 27 at para. 28; Mattina v. Mattina, 2018 ONCA 641.
2. The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. Gordon v. Goertz, [1996] 2 S.C.R. 27.
3. No one factor in the statutory definition of a child’s best interests is given statutory pre-eminence. Wilson v. Wilson, 2015 ONSC 479.
4. A young child with attachments to both parents needs sufficient contact with both, without prolonged separations to maintain a meaningful and close relationship with them. Van Den Driessche v. Van Den Driessche, 2011 MBQB 105; Wilson v. Wilson, 2015 ONSC 479.
5. In resolving custody disputes, emphasis must be placed on the critical importance of bonding, attachment and stability in the lives of young children. Barnes v. Parks.
6. The court should consider the level of hostility and the extent to which that hostility may undermine the child’s stability. Wilson v. Wilson, 2015 ONSC 479.
7. The court should consider how the person seeking access has used contact for a purpose collateral to the child’s best interests. Lusher v. Lusher (1988), 13 R.F.L. (3d) 201 (Ont. Prov. Ct – Family).
8. Financially supporting one’s children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint custody order as it demonstrates poor judgment and an inability to prioritize the child’s interests. Jama v. Mohamed, [2015] ONCJ 619; P.H. v. T.J., 2017 ONCJ 166; McBennett v. Danis, 2021 ONSC 3610; J.T. v. E.J., 2022 ONSC 4956; Shokoufimogiman v. Bozorgi, 2022 ONSC 5057.
9. A starting point to assess a child’s best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe. I.A. v. M.Z., 2016 ONCJ 615.
10. The best interest analysis is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. Phillips v. Phillips, 2021 ONSC 2480. Pereira v. Ramos, 2021 ONSC 1736.

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

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

[12] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. Griffiths v. Griffiths 2005 ONCJ 235, 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. Warcop v. Warcop.

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

[14] 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.

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

[16] In O'Brien v. Chuluunbaatar, 2021 ONCA 555, the court noted at paragraph 49 that the maximum contact principle has been replaced by subsection 24 (6) of the Act. On an appeal of a case heard before the March 1, 2021 amendments to the Act, the appeal court found that it did not have to consider the maximum contact principle – but, in any event, the trial judge had properly considered it.

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

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

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

Background and Evidence

[18] Ms. Strizzi became pregnant within two weeks of the parties meeting in early 2018. They met in Italy when Mr. Traetto was there working.

[19] Ms. Strizzi was 29 years old at the time of trial. She was born and raised in Italy where all her family remains. She came to Canada with Mr. Traetto when she was pregnant with Logan. She does not have her permanent residency status. Mr. Traetto, now 39 years old, was born and raised in Ontario. He is also of Italian heritage, however, his family immigrated to Ontario many years ago. The parties lived together from 2019 to December 2022.

[20] Mr. Traetto is employed as an industrial electrician with FM Sylvan Canada at the Ford Oakville Plant. Since April 1, 2024, he has lived in Brantford with the children and his partner Ms. Madieros and her son. Prior to that he lived in Ingersoll and worked at the CAMI Plant until early 2023.

[21] The parties and children lived in Ingersoll at the time of the separation in December 2022. Prior to that they lived in Georgetown. The nature of Mr. Traetto’s work is that he works intensively on a project for several months then has a number of months off between projects.

[22] At the time of trial Ms. Strizzi was residing with her current partner, Joao Assis in Kitchener. She moved into his residence on March 13, 2024.

[23] It was not disputed that during the relationship Ms. Strizzi was the primary caregiver as Mr. Traetto worked full time. However, he stated that because he worked close by he would return home regularly during his breaks to see the children. When he was not otherwise working he was focused on the children. The parties also agreed that Mr. Traetto’s mother attended the home regularly and was a primary source of support for the family.

[24] The parties strongly disagreed on the nature of their relationship and the reasons for their separation. Each claimed to be the victim of family violence and strongly denied the other’s allegations.

[25] Ms. Strizzi alleged that Mr. Traetto would regularly insult and threaten her in front of the children, throw things at her, and on one occasion following separation pinched her neck during a parenting time exchange.

[26] Mr. Traetto alleged that Ms. Strizzi’s conduct throughout the relationship was highly volatile and conflictual. She threatened him with physical harm including with a knife on one occasion and assaulted him on December 23, 2022.

[27] Both maintain that the other routinely threatened to remove and withhold the children from the others’ care.

[28] Ms. Strizzi alleged that the parties separated on December 23, 2022. On that date she testified that she had borrowed the neighbour’s laptop to work on her permanent residency application and Mr. Traetto refused to provide details she required. An argument occurred during which she stated that she “tapped him” on the shoulder while he threw things at her. She called the police for assistance and when they arrived she was arrested and charged because Mr. Traetto lied to the police. He also got Logan to lie to the police with the help of his mother, who Mr. Traetto called during the incident.

[29] Mr. Traetto alleged that the parties separated on December 11, 2022 when he informed her that he wanted to separate, although the parties did not physically separate at that time. On December 23, 2022 Mr. Traetto testified that he was feeling ill and resting when Ms. Strizzi woke him up by “knocking” on his head to sign the permanent residency application. He told her he was no longer prepared to sponsor her. She became enraged and struck him in the head and threatened to call 911. She did call the police at which point Mr. Traetto called his mother for support and because Logan was upset. She told Logan to tell the truth.

[30] The police attended and interviewed everyone separately and Ms. Strizzi was charged with domestic assault. The charges were later withdrawn.

[31] Following her removal from the home Ms. Strizzi lived at the DASO shelter for approximately four months before renting a residence in Ingersoll.

[32] The issue of Ms. Strizzi’s immigration status was a significant source of conflict both before and after separation. Mr. Traetto felt that Ms. Strizzi was stalling making her application despite his support, which included seeing an immigration lawyer. Ms. Strizzi felt that Mr. Traetto was the source of the delay by not providing the required information and signature she required. She testified that she would not delay her immigration application because of the social services and supports that would be available to her.

[33] During the period of time she was at the DASO shelter after separation, she completed her permanent residency application and paid the fees of $1700 by using the child and spousal support she was receiving. As she was living in a shelter the application was made on humanitarian and compassionate grounds rather than as a sponsorship. She had the assistance of a lawyer in London, Ontario she was referred to by staff at the shelter.

[34] The parties strongly disagreed on medical issues regarding the children. Ms. Strizzi felt strongly about not vaccinating the children and about their diet. She felt Mr. Traetto provided them with a poor diet with too much processed sugar. She was a vegetarian when the parties met but now eats meat, and always provided the children with meat despite her own views.

[35] Mr. Traetto stated that Ms. Strizzi was staunchly vegan when they met and demanded that he and the children also be. Ms. Strizzi regularly made sugary desserts for the children and she kept breast-feeding the children, particularly at night, in a manner that was against the advice of the dentist which resulted in very serious tooth decay in both children, particularly Logan.

[36] Logan had serious issues with his teeth which resulted in him having all but one tooth extracted under general anaesthetic at Sick Kids Hospital in Toronto. He was required to be fitted with a denture as a result. Lincoln also had dental issues which have required four extractions.

[37] The issue of vaccinating the children was a significant source of ongoing conflict. Ms. Strizzi was strongly opposed to all vaccinations for the children, and at the time of separation the children had not received any vaccinations. Mr. Traetto was always in support of regular childhood vaccinations.

[38] Following the parties’ separation, Logan received an immunization notice from his school in February 2023 noting that there was no record for vaccinations on file which could affect his ability to attend school.

[39] Ms. Strizzi obtained a executed a Statement of Conscience or Religious Belief on June 21, 2023, which would exempt Logan from needing complete immunizations to attend school. .

[40] Mr. Traetto, meanwhile, got the children vaccinated by showing the doctor a portion of an affidavit of a CAS worker filed in this proceeding that wrongly indicated that Ms. Strizzi did in fact agree with them. He testified that the first time he became aware of the exemption for Logan was when he received it during this trial.

[41] The parties also strongly disagreed on the issue of religion.

[42] Mr. Traetto wanted to share his Catholic religion with the children which was important to him and his family. This included having the children baptized. Ms. Strizzi disagreed and had a strong negative view of the Catholic Church for what she referred to as historic wrongs. She acknowledged refusing to consent to the baptism. However, during the trial she indicated that she was not opposed to it but would not consent to it.

[43] Melissa Picard testified on behalf of Ms. Strizzi. She and her family lived next door to the parties from in or around April 2022. She was off work at that time and she and Ms. Strizzi and their children spent a lot of time together. They were often together for meals which included meat which Ms. Strizzi prepared. She never observed any concerns with Ms. Strizzi. She described her as energetic and having an “even keel”.

[44] Ms. Picard also permitted Ms. Strizzi to live with her for approximately two weeks in late 2023 when Ms. Strizzi left her apartment in Ingersoll and before her move to Brantford in early 2024.

[45] Ms. Picard did not have the same opportunity to observe Mr. Traetto but never had any concerns when she did. She described him as friendly and helpful when they needed tools or help with an electrical issue. She confirmed that in addition to being a pilot, she worked part-time as a bookkeeper and had offered to help Ms. Strizzi file her tax returns.

[46] Ms. Strizzi testified that after she left the DASO shelter she moved to an apartment in Ingersoll. She began a relationship with Cameron Czink but testified that they never lived together. He was the father of her unborn child which was due in May 2024. She testified that they had planned to live together and had paid first and last months rent in in the fall of 2023. However, this did not materialize. They are no longer in a relationship and they lost their rent deposit. She testified that she had no intention to seek child support from him when their child is born, as he had no intention of being part of the child’s life.

[47] She stated that she was forced to leave her apartment in Ingersoll in late 2023 because her spousal support was reduced. She lived with her friend and former neighbour, Ms. Picard for a couple of weeks in late 2023 prior to her move to Brantford in January 2024.

[48] As a result of the nature of Mr. Traetto’s employment, the work he would have available after the project at CAMI was completed would be back in his regular jurisdiction in and around Brantford and Oakville.

[49] Pursuant to the temporary order the parties had a shared parenting arrangement with the term that the children’s residence not be moved outside of Oxford County. Mr. Traetto wanted to move back to the Brantford area for work. Ms. Strizzi did not oppose the move and indicated that she would also move to Brantford if she had some additional help from Mr. Traetto.

[50] In late 2023 the parties agreed to relocate to Brantford in the early part of 2024. The parties agreed that Mr. Traetto would provide additional funds to Ms. Strizzi to assist her with the move. Ms. Strizzi found an apartment in Brantford and Mr. Traetto provided $3100 in early 2024 to the landlord to cover her first and last months rent. Ms. Strizzi moved to Brantford on January 4, 2024.

[51] Mr. Traetto was not planning to move until April 2024 and was concerned that Ms. Strizzi was not taking sufficient time to find an appropriate and affordable residence. He endeavoured to help her find an affordable residence in Brantford but she resisted his assistance and insisted on the early move to the apartment that she chose.

[52] The parties’ agreement included temporarily changed the parenting schedule for the period after Ms. Strizzi moved and before Mr. Traetto moved. As Logan was still attending school in Ingersoll, they agreed that Ms. Strizzi would see the children on three weekends per month. Mr. Traetto relocated as planned to Brantford on April 1, 2024 to reside with his new partner, Ms. Madieros.

[53] Unfortunately, Ms. Strizzi’s residency did not last in Brantford and she moved to Kitchener with no prior notice in March 2024. She now lives with her current partner, Mr. Assis, in his apartment. This resulted in the order of March 19, 2024 prohibiting the children’s relocation from Brantford.

[54] Ms. Strizzi testified that she met Mr. Assis and started a relationship with him in February 2024 and moved in with him on March 13, 2024. She described her residency in Kitchener as necessary and temporary because she could not afford her rent and living expenses in Brantford and because she could not find midwife services there.

[55] Her plan is to move back to Brantford at some point and re-establish the shared parenting arrangement. She was not sure when she would move or if Mr. Assis would be part of that plan.

[56] Joao Assis testified on Ms. Strizzi’s behalf. He confirmed that he met Ms. Strizzi online in February 2024 and that they began a relationship 1-2 weeks later. He wanted to help her out because he was aware she was struggling financially so he asked her to move in with him in early March 2024. Ms. Strizzi moved in just before March break and she pays half the bills which total $916 per month. He has met the children several times and observed Ms. Strizzi to be attentive and child focused.

[57] He testified that his landlord does not allow pets or children in the residence but did agree when he explained the situation and that this was a temporary plan.

[58] With respect to his role with Ms. Strizzi’s unborn child, Mr. Assis testified that if Ms. Strizzi moved to Brantford he would likely have no role, but if she remained in Kitchener then he may have a role.

[59] Dhaman Kissoon testified on Mr. Traetto’s behalf. He is an experienced immigration lawyer retained in June 2019 by Mr. Traetto to obtain citizenship for the children. He was subsequently consulted by Mr. Traetto regarding sponsorship of Ms. Strizzi. He advised Mr. Traetto about his liabilities as a sponsor, including for three years after his partner became a permanent resident if she went on social assistance. Mr. Kissoon confirmed that he never met Ms. Strizzi and was not retained to assist further.

[60] Anastasia Madieros testified on behalf of Mr. Traetto. She is a dental hygienist and lives in Brantford with her son William. She has known Mr. Traetto for many years and they resumed their relationship in December 2022. They took their relationship slowly because of the children. After spending increasing time together, they moved in on April 1, 2024 into a four-bedroom home in Brantford. They have a good relationship and the blending of the families has gone well. She also has a good relationship with the father of her son.

[61] Ms. Madieros testified that she assists Mr. Traetto with schoolwork and activities with the children, and that they celebrate special occasions with both of their families.

[62] Ms. Madieros stated that Mr. Traetto has never spoken negatively about Ms. Strizzi in front of the children but did acknowledge in cross-examination that he did say to Logan that Mr. Assis was “a loser”.

[63] Mr. Traetto’s mother, Mary Traetto testified. She stated that she attended the family home regularly when the parents were together. When they were in Ingersoll she did not attend as often because of the distance from Mississauga, but did at least once every three weeks and more often when needed. She would bring food and clothes, help around the house, and would drive Ms. Strizzi to appointments. At the time she felt she and Ms. Strizzi had a good relationship and that she was a good mother.

[64] She acknowledged that just after separation she observed her son to say negative things about Ms. Strizzi to the children. She felt this was due to him being under a lot of stress at the time. She spoke to him about this and it has improved. The last time she heard him do this was “months ago”.

[65] She also stated that since separation she has observed the parents argue in front of the children at parenting time exchanges. She observed that the transitions were difficult for the children, particularly the drop-offs.

[66] Mary Traetto testified that she was supportive of the parties’ efforts to submit the application for Ms. Strizzi’s permanent residency. She spoke to her MP several times and helped obtain documents. She acknowledged in redirect examination that prior to separation she had been waiting for Mr. Traetto to sponsor Ms. Strizzi and was upset that he was not doing so.

[67] The Court has the benefit of an OCL Report from clinician, Crystal Langdon, dated April 3, 2024. Neither party sought to cross-examine Ms. Langdon and the Report was entered into evidence.

[68] The OCL Report was released during the period when Ms. Strizzi had relocated to Kitchener from Brantford to reside with her new partner. The Report noted the following:

1. Logan and Lincoln are both kind and active children with a lot of energy.
2. Ms. Langdon observed the children with both parents. In terms of their engagement with Ms. Strizzi, they were argumentative, aggressive, and struggled emotionally. They did not respond well to Ms. Strizzi’s redirection and often cried, yelled, and hit her and each other.
3. In Mr. Traetto’s home the children were observed to be calm, focused, and responsive to his direction. Mr. Traetto was observed assisting Logan with his homework.
4. The clinician was concerned that some of Logan’s comments about his mother appeared inconsistent with his age and stage of development. For example, Logan said that his father was better able to care for him and his mother brings home “random men with tattoos”, and disclosed to her that his father told him this.
5. The clinician concluded that there was a concern of Mr. Traetto speaking to Logan about Ms. Strizzi which was negatively influencing him.
6. Further concerns were noted that Ms. Strizzi was not able to establish any lasting stability, and with her choices to move and quickly bring new partners into the lives of the children.
7. Collateral information was received from the pediatric dentist for Logan which indicated that he was breast-fed for several years and was eating food pre-chewed by Ms. Strizzi, resulting in the loss of several teeth. The records indicated that the dentist provided Ms. Strizzi with education regarding breast-feeding and breaking down food, and that the dentist advised that Ms. Strizzi’s particular practices of breast-feeding should stop immediately.
8. Additional collateral information was received from the police and the CAS. With respect to police involvement, other than the December 23, 2022 incident, there was no other evidence of ongoing police involvement with the parties, and there were no other allegations of domestic violence.
9. The CAS Oxford confirmed it received a referral from police following the December 23, 2022 incident. The parties reported their respective concerns. They were investigated and not verified and the file was closed.

[69] The Report recommended, among other things, the following:

1. Mr. Traetto to have sole decision-making and primary residence with Ms. Strizzi having unsupervised parenting time on alternate weekends from Friday to Sunday, and Wednesday from 5 PM to 7 PM, with an equitable sharing of holidays and special occasions.
2. All exchanges for parenting time to occur at a police station.
3. Ms. Strizzi not to leave the children with any alternate caregivers without Mr. Traetto’s consent.
4. Neither party to expose the children to any negative comments or communications about the other parent or discuss any parenting issues with them or in their presence.
5. The parties to communicate through a parenting app.

Analysis

[70] The exercise of fact finding in this case is impacted primarily by the court’s credibility assessment of the parties, who offered dramatically opposing evidence about the nature of their relationship and their interactions subsequent to their separation.

[71] Both parties made serious allegations of abusive behaviour and violence on the part of the other.

[72] I am not convinced that the narrative of either party is entirely accurate. Both parties presented as easily triggered by the other and there were areas of their evidence that seemed embellished or exaggerated, particularly the evidence of Ms. Strizzi.

[73] As the court in Alsawwah v. Afifi, 2020 ONSC 2883, wisely remarked, exaggeration is the enemy of credibility. When the court has the sense that allegations are embellished or exaggerated it may colour the witnesses’ entire evidentiary narrative.

[74] There is no evidence that the police were involved regarding parental conflict or allegations of domestic violence other than on December 23, 2022. CAS Oxford investigated both parties’ allegations at that time and did not verify any concerns. Neither party has a criminal record or other involvement with CAS, and Ms. Strizzi’s criminal charge was withdrawn.

[75] However, I find that the parties had a highly conflictual relationship, and both parties were more involved in the conflict than they acknowledged. They had a tumultuous relationship where Ms. Strizzi became pregnant within two weeks of their acquaintance. They disagreed on virtually everything, including diet/food, religion, medical care and vaccinations, and appear to have very different parenting styles.

[76] I find that they have engaged in a high level of conflict in front of the children before and after separation. This was confirmed by Mr. Traetto’s mother. Mary Traetto presented as a compelling and believable witness. Her evidence was balanced and responsive, and acknowledged facts that were critical of her son at times. I accept her evidence where it conflicts with the evidence of either party.

[77] Mr. Traetto acknowledged that there were times when both parties said “horrible things” to each other. He initially testified that he did not do that in front of the children and that he did not speak negatively to the children about their mother. However, he did acknowledge in reference to the OCL Report and its conclusions that this may have happened at times. Despite him acknowledging this, he quickly circled back in his evidence to blaming Ms. Strizzi for creating the circumstances that caused the conflict.

[78] Ms. Strizzi accepted no responsibility for any conflict, and was strongly of the view that it was entirely due to Mr. Traetto’s behaviour. I do not find this position credible. This was indicative of her evidence generally where she was unable or unwilling to make any admission against her interest. It left the court with the impression that she was endeavouring to be strategic and self-serving at times.

[79] Neither do I accept that on December 23, 2022 that she “tapped” Mr. Traetto on the shoulder as she said.

[80] Ms. Strizzi was completing her permanent residency application and Mr. Traetto was finally clear he was not willing to sponsor her. I am left in no doubt that Ms. Strizzi was incensed by this and that she struck Mr. Traetto in the head. While he had no injuries it was nonetheless a highly inappropriate reaction by Ms. Strizzi.

[81] Unfortunately, it did not end there. The serious argument continued where the children were exposed and the police ultimately attended. I accept that Logan was present and very upset by it as confirmed by Mary Traetto.

[82] The issue of Ms. Strizzi’s PR application was a significant source of conflict. Each claimed that the other was the source of the delay. Mr. Traetto felt that Ms. Strizzi was not motivated to do so and failed to follow through despite his efforts to assist her. Ms. Strizzi felt that Mr. Traetto was the source of the delay because he would not provide the information and signature she needed.

[83] I find that both parties had their reasons for not pursuing the permanent residency application more seriously prior to separation, but that Mr. Traetto was primarily responsible for it not proceeding. Ms. Strizzi felt no urgency to do so because Mr. Traetto was a good provider and the parties were together. She had no reason to believe he would not follow through with his stated commitment to sponsor her until December 23, 2022 when he made it clear he would not.

[84] It was clear given the tumultuous nature of their relationship that very early on Mr. Traetto was increasingly uncomfortable with the idea of sponsoring her application. This would have been particularly the case after he got advice from Mr. Kissoon on the potential financial responsibilities as her sponsor if they separated.

[85] I find that well before separation he had concluded that he had no intention of following through with sponsoring Ms. Strizzi, and that he did not clearly communicate this until December 23, 2022. His mother was frustrated with his lack of follow-through and seemed to have tried to do more to move Ms. Strizzi’s application forward than either of the parties did prior to separation.

[86] I also do not accept Mr. Traetto’s position that the parties separated on December 11, 2022. All his pleadings in this matter reflect the date as December 23, 2022 when police removed Ms. Strizzi from the home, and it was only in his evidence that he indicated an earlier date. I find that the parties separated on December 23, 2022 during an argument during which Mr. Traetto made it clear he was no longer prepared to sponsor her application and wished to separate. She was removed by the police following the ensuing argument during which she assaulted him.

[87] Both parties presented as having strong personalities, and I was left with the impression that neither would hesitate to speak their minds to each other, including in front of the children.

[88] Parents have an obligation to shield their children from parental conflict and both parties have failed to do so at times. Overall, I find that while both parties are responsible for exposing the children to negative comments and parental conflict. However, there were occasions where Ms. Strizzi’s choices and behaviour were of particular concern.

[89] In addition to the December 23, 2022 incident during which she escalated to physical violence, the “elf on the shelf” incident was illustrative in my view of her intentionally seeking to provoke conflict in front of the children in a manner that she ought to have known would be upsetting for them.

[90] The parties do not disagree that the following occurred prior to separation. The family played the elf on the shelf game, where during the Christmas season a toy elf would be found in different places around the house by the children. As a treat for the holiday Mr. Traetto bought Logan a box of sugary cereal. Logan was very excited to have some for breakfast the following day. The next morning when Logan got up he found the box of cereal ripped open with the cereal spelling out the words “Don’t eat poison” in the front yard. The elf was propped up against the ripped open box next to it. Ms. Strizzi admitted that she did this.

[91] This is where the parties evidence diverged. Mr. Traetto stated that Logan was extremely upset and crying and that Ms. Strizzi was laughing at both of them. Ms. Strizzi stated that they were all laughing about it as part of their elf on the shelf tradition.

[92] I do not accept Ms. Strizzi’s evidence on this point. I cannot imagine that Logan was not upset, which was made worse by his mother laughing at him. This is one example of Ms. Strizzi’s choices which were not child focused and designed to provoke conflict with Mr. Traetto. I am not surprised that it did just that on this occasion.

[93] I find that this type of behaviour by Ms. Strizzi has continued at parenting exchanges as observed by Mary Traetto, who stated that Ms. Strizzi interacts with Mr. Traetto during exchanges in a way that appears designed to instigate conflict. I also find that Mr. Traetto is easily triggered and not able to resist engaging in this conflict despite his children’s presence.

[94] It was not disputed that Ms. Strizzi was the primary caregiver prior to separation. She was a stay-at-home parent unable to work because of her immigration status. I accept the evidence of Mary Traetto and Ms. Picard regarding observing Ms. Strizzi’s positive interactions with the children prior to separation.

[95] Mr. Traetto worked full time and was the sole breadwinner. However, I also accept that he was focused on the children at other times. Ms. Picard confirmed that he came home frequently during his lunch breaks from work to see the children, and Ms. Strizzi did not dispute that he focused his time on the children when he was not working.

[96] Unfortunately, many of Ms. Strizzi’s choices have only contributed to the lack of stability that she has been able to offer the children. Introducing the children and cohabiting with new partners in the manner that she did has not served the best interests of the children and would likely have been confusing to them.

[97] I do not accept Ms. Strizzi’s evidence that she never lived with Mr. Czink. Despite her evidence at trial, she claimed in sworn pleadings that they were living together in the fall of 2023. In her financial statement and 35.1 affidavit filed at that time she stated he was her partner and that they lived together. She presented him to her children and to Mr. Traetto that he was her partner and the children’s stepfather. She also acknowledged that she had lost the first and last months rent deposit that she and Mr. Czink put down on a new residence which did not materialize. It was not made clear why this happened, but I took it to be because they separated. This relationship was short-lived and Ms. Strizzi stated that they have no contact now despite the fact they are about to have a child.

[98] Mr. Traetto diligently and consistently paid the spousal and child support under the temporary orders and paid additional amounts following separation. Ms. Strizzi received additional money from Mr. Traetto to permit the move to Brantford. She moved quickly and without carefully searching for an appropriate and affordable residence. She moved to a place that she knew or ought to have known that she could not afford.

[99] She refused any help from Mr. Traetto to search for an affordable home in Brantford, and his concern about her choice at the time was well founded. Despite Mr. Traetto paying her first and last months rent, in two months she moved to another city with the partner she had just met online.

[100] I do not accept Ms. Strizzi’s evidence that the move to Kitchener was necessary because she could not find midwife services in Brantford. There was no independent evidence provided to support this. Rather, I find that she hastily chose a residence that she clearly could not afford and within weeks moved to another city to be with her new partner with no notice to Mr. Traetto.

[101] Ms. Strizzi’s plan for the children is to continue to reside with Mr. Assis temporarily and then to move back to Brantford at some point and resume the shared parenting arrangement. She agreed that the children should attend school in Brantford. She hoped to receive her PR status and wanted to be able to work. However, it could still take years to be processed.

[102] Neither she nor Mr. Assis characterized their relationship as committed and long term. Ms. Strizzi did not know when she would return to Brantford or if Mr. Assis would be involved. In the meantime, he has agreed to assist her with transportation for her parenting time. Unfortunately, he has a four-seater sports car which will make it a challenge when she has her third child expected in early May 2024.

[103] She has no family and few personal supports in Canada, but she presented as energetic, articulate, and resourceful.

[104] Mr. Traetto’s plan is to live with his current partner in Brantford in the home they have rented. He has the children involved in extracurricular activities and has made arrangements for Logan to attend a Montessori school, which he felt was important to prepare him for school in September. His plan is for the children to attend a nearby Catholic school in Brantford.

[105] He has the support of Ms. Madieros. Their relationship is committed and stable. He also has the support of his family, primarily his mother, who now lives closer to them and has been assisting with childcare since separation.

Decision-making and Parenting Time

[106] To say that the parties were unable to communicate and cooperate effectively would be an understatement. It was patently clear during their testimony that they had little respect for each other.

[107] Their short relationship was marked by a high level of conflict. They disagreed on almost all major decisions including lifestyle, diet, religion, and medical choices.

[108] The text message communications made it clear that Ms. Strizzi was not consistent with any prescribed medication for the children that she did not agree with. For example, Logan required a puffer for breathing issues which Ms. Strizzi refused to administer because she believed it might make his symptoms worse and that he might become addicted to it.

[109] Her decisions in this regard have not served the children’s best interests. Mr. Traetto is better able to understand and meet the children’s medical needs. However, he should have sought a court order regarding vaccinations. Instead, he convinced the doctor to vaccinate the children by showing them an affidavit from the CAS worker that he knew did not accurately reflect Ms. Strizzi’s views.

[110] The OCL Report also confirmed the pediatric dentist’s concern for Ms. Strizzi’s feeding practices, and that they contributed to the serious dental issues that the children, particularly Logan, have had to endure.

[111] I also accept the observations of the OCL clinician that Ms. Strizzi had challenges at times managing the children’s behaviour and that she has not been able to offer lasting stability. I also accept that Mr. Traetto has not been able to refrain at times from inappropriately sharing his frustrations with Ms. Strizzi with the children.

[112] While I accept that the children enjoy the love and support of both their parents, Mr. Traetto is better able to meet the children’s needs consistently. He is in a stable relationship and has the supports in place for the children.

[113] Ms. Strizzi’s relationships with her partners continue to be unstable. Despite presenting Mr. Czink to the children as a stepparent, the relationship was short-lived. While her current partner, Mr. Assis was able to offer her support and presented as genuinely caring, it appeared to be a relationship of convenience for Ms. Strizzi and another hasty choice that was not well thought out or child focused.

[114] Ms. Strizzi’s lack of stability goes beyond the fact that she has limited financial resources and supports. Her cohabitation and the exposure of her children to new partners has not been undertaken in the child sensitive manner and was likely confusing for them.

[115] An access parent is entitled to share his or her ordinary lifestyle with a child. A custodial parent has no right to interfere with how a child spends his or her time with an access parent, unless the activity poses a risk to the child, or is not in the child’s best interests. Young v. Young, [1993] 4 S.C.R. 3.

[116] She is able to provide physical safety to her children, however, her choices have not provided emotional safety or stability.

[117] While Ms. Strizzi presented as energetic and resourceful, she has not done all she could to establish a stable environment for the children. There was no evidence that she has sought out any benefits or assistance that may be available to her as a non-resident from both government and nongovernmental sources. She acknowledged not yet completing her tax returns despite a temporary order that she do so and the offer of assistance from Ms. Picard.

[118] Further, when she lost her residence and rent deposit in late 2023 after separating from Mr. Czink, and had to live with Ms. Picard for a short time, she stated it was due to financial issues. Yet she acknowledged taking the children at that time by train for a weekend to Great Wolf Lodge.

[119] Overall, while she faces a challenging situation given her immigration status and lack of family supports, her choices have not always been reasonable in the circumstances.

[120] Mr. Traetto wishes to have the children baptized and for them to participate in the Catholic Church.

[121] Absent evidence that demonstrates that exposure to religious beliefs will not be in the best interests of the child, it is not appropriate to try to limit religious activities by one of the parents or either of them. S. (M.J.) v. M. (S.B.), 2017 BCSC 502.

[122] Mr. Traetto shall be entitled to baptize the children and have them participate in the Catholic Church with him. However, this participation will not extend into the time they spend with their mother.

[123] The parties have no history of positive communication. They disagreed on virtually all major decisions regarding the children’s health and welfare. These are young children who need stability and consistency.

[124] There is no basis to conclude that any level of reasonable communication and cooperation is achievable in the future to an extent that would support joint decision-making. To the contrary, a joint decision-making order would only invite the level of dysfunction and conflict to continue, and increase the risk that important decisions regarding the children would be delayed.

[125] Overall, the best interests of the children support an order that Mr. Traetto have sole decision-making authority. However, Ms. Strizzi shall have the right to make independent inquiries with any third parties involved in the health, education, and welfare of the children. Further, Mr. Traetto shall keep her apprised of important decisions with respect to the children’s health, education, and welfare and provide her with up-to-date contact information for any third parties involved with them.

[126] For the same reasons a joint decision-making order is not appropriate, I find that a shared parenting arrangement is not in the children’s best interests at this time. There is no presumption in favour of shared parenting and Ms. Strizzi acknowledges that as a result of her recent move to Kitchener, the shared arrangement that has been in place since the temporary order of March 2023 cannot continue.

[127] The parties had an agreement to move to Brantford which would have permitted the shared parenting arrangement to continue. This would have occurred as of April 1, 2024 when Mr. Traetto moved as planned. Unfortunately, Ms. Strizzi had already left Brantford by then. Had Ms. Strizzi maintained her residency in Brantford, the shared residency would have resumed and may well have been continued by the court following this trial.

[128] However, it would not be appropriate to order that when or if she returns to Brantford that the shared arrangement resume. She has no clear plan and the circumstances of any future move are entirely unknown.

[129] The best interests of the children support an order that they live in the primary care of Mr. Traetto with parenting time with Ms. Strizzi on alternate weekends and one midweek visit, with an equitable sharing of holidays and special occasions.

[130] The parties shall share the transportation for parenting time. In order to protect the children from exposure to conflict during exchanges they shall occur at a police station or access centre unless agreed otherwise. The parties shall not communicate about issues or concerns or expose the children to any parental conflict during exchanges.

[131] The issue is not to reward or punish either parent but to put an arrangement in place that will best serve the interests of the children. Having considered all the factors outlined herein, and in s.24 (2) of the CLRA, the best interests of the children support an order for sole decision-making in primary residence with Mr. Traetto, with regular parenting time and an equitable sharing of holidays with Ms. Strizzi.

Child and Spousal Support

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

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

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the spouse;

[133] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. Clause 19(1)(a) of the guidelines is perceived as being a test of reasonableness. Drygala v. Pauli, [2002] O.J. No. 3731(Ont. CA).

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

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

[135] A court must also consider whether the under-employment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse. If the court is satisfied that one of these reasons has been established, it cannot impute income to the party. Lavie v. Lavie, 2018 ONCA 10, at para. 28.

[136] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.). However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.

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

[138] The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.

[139] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: Riel v. Holland, at paragraph 23. It must be reasoned, thoughtful and highly practical: Hagner v. Hawkins, (Ont. S.C.) at paragraph 19. As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, [2000] O.J. No. 453, (Ont. Fam. Ct.).

[140] The third question in Drygala v. Pauli, supra, is: “If there is no reasonable excuse for the payor’s under-employment, what income should properly be imputed in the circumstances?” The court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. Lawson v. Lawson.

[141] Where the under-employment or unemployment is the result of one's own actions (an event over which the payor had some control) or misconduct, the support obligations will not be reduced or cancelled. Luckey v. Luckey, [1996] O.J. No. 1960 (SCJ); Maurucci v. Maurucci); Sherwood v. Sherwood (2006), O.J. No. 4860 (SCJ). This situation is similar to the one in Baldini v. Baldini (1999), 46 R.F.L. (4th) 407, [1999] B.C.J. No. 1426, where the court imputed income to the payor because he had been fired for doing personal work on company time and using company material without permission. The court found that the consequences of the payor’s actions should be borne by him and not by their dependants. Aboagye v. Sakyi, [2012] O.J. No. 575 (OCJ).

[142] However, the imputation of income to a payor who is earning less income due to their own misconduct or reckless behaviour is not automatic. It remains an exercise of discretion for the court. Sheridan v. Cupido, 2018 ONSC 5817.

[143] The test for imputing income for child support purposes applies equally for spousal support purposes. Rilli v. Rilli, [2006] O.J. No. 4142, (Ont. Fam. Ct.); Perino v. Perino, O.J. No. 4298 (Ont. S.C.).

The Parties’ Incomes for Support Purposes

[144] Mr. Traetto is an industrial electrician employed through FM Sylvan Canada, primarily working on projects in automotive manufacturing facilities. As previously indicated the nature of his employment is that he works intensively on a contract or project for several months, then may have extended periods off between projects when he receives Employment Insurance (EI).

[145] His line 150 income from his Notices of Assessment are as follows:

2019- $75,659 2020- $95,897 2021- $184,427 2022- $169,502

[146] At the time of trial he had not received his 2023 Notice of Assessment. However, his income tax return and amended T4 showed total employment income of $66,856.

[147] His income was significantly less in 2023 because the project he was on at the CAMI plant was finished in the spring of 2023 and there was not another project immediately available. In the fall of 2023, he had a short project in Windsor from mid-September to October 31, 2023.

[148] He acknowledged that he was entitled to claim EI between finishing the project at CAMI and before starting in Windsor. However, he missed the deadline to apply and his appeal was dismissed.

[149] The level of income he had in 2021 and 2022 was considerably higher than he would have otherwise received because of the nature of the project at CAMI. His principal area of employment is in the Oakville/Branford area and the plant in Ingersoll is outside of this area. As a result, he receives an LOA, or living out allowance, which is an amount paid to an employee who is working outside their principal area. This LOA was paid at a rate of $140 a day and, along with night shift and other shift premiums available during that project, significantly increased his income. He also received this LOA payment during the project in Windsor in the fall of 2023.

[150] With respect to his income for support purposes for 2023, I accept that given the nature of his work his income was reduced from previous years. With the completion of the project in Ingersoll and after the short project in Windsor in the fall of 2023 he was no longer entitled to the LOA which increased his income considerably along with the various shift premiums that were available.

[151] I accept that his employment income from 2023 was $66,856. However, I am not of the view that this is the appropriate level of his income for support purposes for that year. He acknowledged that he was entitled to EI benefits between the end of the work at CAMI and the start of the project in Windsor.

[152] Despite the same type of work with the same employer over several years, he failed to apply for EI by the deadline and his subsequent appeal was refused. This resulted in him having less income for support purposes than he was entitled to and should have earned. His failure to properly pursue and obtain this was not reasonable.

[153] In the circumstances, for support purposes, his 2023 income shall be $80,000 to reflect his employment income and a portion of the EI income he ought to have received and was entitled to but for his failure to apply for it in a timely way.

[154] Starting in January 2024 he began work at the Ford plant in Oakville which is in his principal area of work. As a result, the additional LOA payment he has received while in Ingersoll is no longer applicable.

[155] His most recent pay stub for the period ending April 13, 2024 showed gross year-to-date earnings of $29,884.22. He testified that this was an accurate outline of the income he expected to receive going forward.

[156] He provided written confirmation from the plant manager at Oakville Ford that as a result of market shifts and pressures, the project would be extended with scheduled shutdowns as needed to support any supplier issues. Mr. Traetto testified that this is done to limit over time and other shift premiums in order to keep costs down.

[157] He testified that he could expect 37.5 hours per week and his most recent pay stub noted his hourly wage as $58.22.

[158] Starting in January 2024 he is no longer entitled to the LOA and will likely not have the overtime and shift premiums that were available in Ingersoll. This was confirmed by the employer in writing in April 2024.

[159] His most recent pay stub, which he testified would accurately reflect his income going forward, showed year-to-date income of $29,884 up until April 13, 2024 (which is for the first 15 weeks of 2024). Prorated over the year this establishes an expected income of $103,597. I am satisfied that this represents the best evidence and estimate of his income for the year for support purposes.

[160] Mr. Traetto seeks to have income imputed on Ms. Strizzi for support purposes. He argues, in part, that she intentionally delayed in seeking her PR status during the relationship, despite his support. Her inability to work is the result of her own unreasonable conduct. As a result, she is not able to work and earn what she ought to have been earning had she not delayed her application.

[161] In my view Mr. Traetto has not satisfied the onus of establishing that Ms. Strizzi is intentionally under or unemployed. Ms. Strizzi is not legally able to work in Canada given her immigration status. I have previously found that both parties for their own reasons for the application not being filed during the relationship, but that Mr. Traetto was primarily responsible. Further, I am also satisfied that Ms. Strizzi has taken reasonable steps following separation to have that application filed with the assistance of a referral from the DASO shelter. Her application for permanent residency has been filed with the application fees of $1700 paid from support payments she received. This would have been a challenge for her in the circumstances of the shared parenting order in place.

[162] Neither am I satisfied that she has or could earn anywhere close to the level of income Mr. Traetto seeks to impute on her for working “under the table” walking dogs or selling lasagna.

[163] I accept Ms. Strizzi’s evidence that she made very little money selling food online given the overhead and limited demand. Further, she can no longer do this in any event as a result of a call from a Health Inspector directing her to immediately cease this venture. I also accept her evidence that money she made for dog walking amounted to only $30 a week for a short period of time when she was in Ingersoll.

[164] Considering all these factors, I find that it is not appropriate to impute any income to Ms. Strizzi for the purpose of the support analysis. She has no ability to pay child support. The consequences of making a child support order that she has no legal means to satisfy exposes her to enforcement measures due to non-payment, which ultimately exposes her to the risk of incarceration. Such a result does not serve the interests of justice, does not provide a fair and just result, and does not assist the best interests of the children in this matter.

[165] For reasons which will be outlined further below, for child support purposes the parties maintained a shared arrangement from April 1, 2023 to March 31, 2024.

[166] On the basis of the shared parenting arrangement from April 1, 2023 to March 31, 2024, Section 9 of the Child Support Guidelines indicate the factors to be considered in determining the appropriate amount of child support. These include the amounts set out in the Guidelines based on each parties’ income, any increased costs associated with the shared parenting arrangement, and the condition, means, needs, and circumstances of the parties and children.

[167] In a shared arrangement there is no presumption of the table amount and no automatic reduction for shared parenting. Often when there is a great disparity of income, there will be no variation from the table. It would be inappropriate for the children to live in poverty in one home and in relative luxury in the other. Magee and Faveri [2007] O.J. No. 4826.

[168] I am satisfied given the significant disparity in incomes and Ms. Strizzi’s inability to legally work, that there be no variation to the Guideline amount. Based on Ms. Strizzi’s income of $0.00 and Mr. Traetto’s income for support purposes in 2023 of $80,000 and for 2024 of $103,597, the child support obligation for 2023 is $1211 per month, and for the first three months of 2024 is $1515 per month.

[169] On the basis of the parenting order made with the children in the primary care of Mr. Traetto as of April 1, 2024, there shall be no order for child support payable by her pending further order of the court. However, she shall be required to forthwith inform Mr. Traetto of any determination of her permanent residency application or any change in her ability to be employed.

Spousal Support

[170] Section 30 of the Family Law Act sets out that every spouse has an obligation to provide support for his or her spouse in accordance with need, to the extent that he or she is capable of so doing. I have considered the purposes of an order for spousal support that are set out in subsection 33(8) of the Act and the factors in determining the award set out in subsection 33(9) of the Act in making this decision.

[171] 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. Rioux v. Rioux, 2009 ONCA 569, [2009] 97 O.R. (3d) 102 (OCA). Entitlement can be based on compensatory, non-compensatory or contractual grounds. Bracklow v. Bracklow.

[172] Compensatory support is premised on a spousal relationship being a joint endeavor and seeks to alleviate economic disadvantage by taking into account all the circumstances of the parties, including the advantages conferred on either spouse during the relationship. It is concerned with an equitable sharing of the benefits of the relationship. Contractual entitlement, on the other hand, flows from the express or implied agreement. Finally, non-compensatory support may be ordered “where it is fit and just to do so.” Poirier v. Poirier, 2010 ONSC 920.

[173] Where compensation is not the basis, the support obligation may arise from the 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. The needs-based support could therefore consider the recipient’s ability to become self-sufficient.

[174] The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11 stated that before applying the Spousal Support Advisory Guidelines (SSAG), entitlement to support must first be established.

[175] Re-partnering in particular is a circumstance that the SSAGs suggest, at s. 14.7, requires a case-by-case determination. Re-partnering is also specifically contemplated by the SSAGs (s. 13.8) as a reason to revisit entitlement to support and consider terminating it. Politis v. Politis, 2021 ONCA 541.

[176] Section 16 the Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa: Department of Justice, 2016), echoes the sentiment in instructing that re-partnering “does not mean the automatic termination of spousal support, but support is often reduced and sometimes even terminated.” This depends on “whether support is compensatory or non-compensatory, as well as the length of the first marriage, the age of the recipient, the duration and stability of the new relationship and the standard of living in the recipient’s new household.”

[177] Ms. Strizzi has a compensatory claim arising out of the roles of the parties during the relationship. While the length of the relationship was relatively short (approximately 3.5 years), she came to Canada at Mr. Traetto’s request and he was aware that she had no legal ability to earn income. She was also the primary caregiver of the children during the relationship which permitted Mr. Traetto to continue to pursue a successful career as an industrial electrician.

[178] She also has a strong non-compensatory claim for support based on her clear need for assistance following separation. While she is young and healthy, she has a limited work history and few marketable skills. Most importantly she cannot legally obtain work given her immigration status.

[179] Mr. Traetto has the ability to pay spousal support. He is well educated and an experienced industrial electrician who earns a significant income.

[180] Mr. Traetto did not dispute Ms. Strizzi’s entitlement to support. His submissions were focused on the parties’ level of income for support purposes. He also seeks an order with the termination date for any obligation for spousal support he may have remaining.

[181] Ms. Strizzi was clearly entitled and in need of support at the time of separation, and her need will not substantially diminish unless or until she receives her permanent residency status or there is another material change in her living circumstances.

[182] The fact that she has re-partnered since separation is a factor to be considered. She re-partnered with Mr. Czink in August 2023 and was pregnant with his child at the time of trial. However, this relationship was only two or three months long at most.

[183] Her current relationship and cohabitation with Mr. Assis began less than four weeks after meeting him. They both testified that it was a temporary arrangement based on Ms. Strizzi’s circumstances. Neither of them were clear that their relationship was likely to last, particularly when or if Ms. Strizzi moved back to Brantford.

[184] Overall, there is no basis to conclude that Ms. Strizzi’s relationships since separation have been either stable or committed to an extent that impacts the present spousal support analysis.

[185] Her choice to have another child given her precarious financial circumstances has only increased the financial strain she is under. She appeared to have no clear plan on supporting her unborn child. She was adamant in her testimony that she had no intention of seeking child support for Mr. Czink. She also has not completed her income tax returns despite her friend, Ms. Picard’s offer to assist her.

[186] There is no doubt she is in a difficult position. However, the choices she has made and continue to make have only increased the financial strain and the lack of stability she is able to provide her children.

[187] On the basis of the incomes of the parties for 2023 and the shared parenting arrangement the SSAG “with child support” formula and the shared parenting arrangement produce a range of spousal support from $1255 to $1718 with the midpoint of $1503. For 2023, spousal support in the mid-range is appropriate in the circumstances that Mr. Traetto is paying full guideline child support.

[188] Up until March 2024, prior to Ms. Strizzi moving to Kitchener I am of the view that there was still a shared parenting arrangement for support purposes.

[189] The parties had a shared parenting arrangement pursuant to an order of this Court dated March 20, 2023. She agreed at Mr. Traetto’s request to move to Brantford for his employment. The agreement included Mr. Traetto providing Ms. Strizzi with additional funds to make the move. The change in the parenting time arrangement was temporary and necessary to facilitate the parties’ relocation at different times and to facilitate Logan still attending school in Ingersoll until the end of the school year.

[190] I find that not only was this a necessary and temporary arrangement, but that the parties intention was to return to the shared arrangement once they had both relocated. It would be unfair to Ms. Strizzi for support to be adjusted during the weeks between her and Mr. Traetto’s relocation. The move was undertaken at his request and the temporary changes were expected to be short-lived.

[191] However, Ms. Strizzi’s decision to move to Kitchener without notice in mid- March 2024 was a repudiation of that agreement between the parties, and made the return to the shared arrangement not appropriate or possible.

[192] After March 31, 2024, for support purposes the children were residing in the primary care of Mr. Traetto. As a result, support shall be calculated up to March 31, 2024 based on a shared parenting arrangement, and starting April 1, 2024 on the basis that the children reside primarily with Mr. Traetto.

[193] Pursuant to the incomes of the parties for 2024 and the shared parenting arrangement up to March 31, 2024, the SSAG “with child support” formula produces a range of spousal support from $1644-$2243 with the midrange being $1987, with the quantum of child support being $1515 payable by Mr. Traetto to Ms. Strizzi.

[194] As Mr. Traetto was responsible for ensuring Logan attended school after Ms. Strizzi moved and was temporarily responsible for a greater amount of care of the children pending his move to Brantford, it is appropriate that spousal support be fixed for this period at the lower end of the SSAG, or $1644 per month.

[195] Commencing April 1, 2024 when the children were in the primary care of Mr. Traetto, his child support obligation would terminate and the SSAG produce a spousal support range under the “custodial payor” formula of between $320-$426 with $373 being the midpoint.

[196] In the circumstances I am not satisfied that the SSAG ranges for the period following April 1, 2024 result in an appropriate or just amount of spousal support. Neither am I, for the same reasons, of the view that there should be a fixed termination date for spousal support as requested by Mr. Traetto despite the relatively short duration of the relationship.

[197] The Court of Appeal in Fisher v. Fisher, supra, stated that the SSAG, while only advisory, are a useful starting point to assess the quantum of spousal support, once entitlement is established.

[198] However, there are circumstances where the SSAG do not generate sufficient support for the recipient to be able to meet basic needs, particularly in short relationships with no children or children in the care of the payor.

[199] In these cases the courts have determined that the high range in the SSAG would not provide adequate support. Ponkin v. Werden, 2015 ONSC 791; Tasman v. Henderson, 2013 ONSC 4377; Carty-Pusey v. Pusey, 2015 ONCJ 382. While the case of Carty-Pusey v. Pusey, supra, dealt with temporary support, Justice O’Connell succinctly summarized the potential issue with the SSAG ranges in certain circumstances:

[74] As Justice Roselyn Zisman noted in Niranchan v. Nadarajah, supra, at paragraph [52] of that decision, although the SSAG formula is intended to apply to the vast majority of cases, there will be unusual or atypical cases where the formula generates results that are inconsistent with the support factors and objectives found in the legislation. An appropriate result can only be achieved by departing from the formula.

[75] In particular, the SSAG recognized that the formula may create specific problems for short marriages without children where the recipient has little or no income at the time of separation. A number of exceptions are outlined in the explanatory notes to the SSAG in cases involving short marriages without children. The exceptions that apply in this case are the exceptions for compelling financial circumstances in the interim, and the basic needs/hardship exception.[4]

[76] The “basic needs/hardship exception” was added in the Final Version of the SSAG to recognize the specific problem with shorter marriages where the recipient has little or no income and the formula is seen as generating too little support for the recipient to meet his or her basic needs for any transitional period that extends beyond the interim exception. See Simpson v. Grignon, 39 R.F.L. (6th) 329, [2007] O.J. No. 1915, 2007 CarswellOnt 3095 (Ont. Fam. Ct.).[5]

[77] Further, in The Spousal Support Advisory Guidelines: A New and Improved User Guide to the Final Version (2010), Professors Carol Rogerson and Rollie Thompson noted specifically that some of the identified exceptions to the SSAG may be relevant in short marriages involving immigration sponsorship agreements, justifying a departure from the formula ranges.[6]

[200] Ms. Strizzi has no legal ability to work in Canada. Her permanent residency application was filed in 2023 and the parties agreed this could take up to three years to be processed. Ms. Strizzi came to Canada at Mr. Traetto’s request while pregnant with their first child on the basis of a commitment that he would sponsor her application. As a result of conflict in the relationship and their ultimate separation, he was not prepared to follow through with this commitment.

[201] His immigration lawyer, Mr. Kissoon advised him prior to the parties separation that if he did sponsor her there would be significant financial responsibilities following a separation, including if she ever received social assistance.

[202] Taking into account all the factors and objectives of a spousal support order, the SSAG in this case generates amounts that are not sufficient to provide adequate support and there are exceptional circumstances which require these guidelines to be adjusted.

[203] Given her immigration status Ms. Strizzi is not eligible to receive Ontario Works. A single person living alone without children in their care would be eligible in Ontario for up to $733 per month for basic needs and shelter.

[204] While there is no signed sponsorship agreement in place, I find that Mr. Traetto has a heightened responsibility to support Ms. Strizzi. However, he is solely responsible for providing for the children with no financial assistance from Ms. Strizzi.

[205] Considering all these factors, and the amounts that Mr. Traetto has paid since separation, spousal support shall be payable at a rate of $750 per month commencing April 1, 2024. However, in addition to the obligation on Ms. Strizzi to inform Mr. Traetto of any change in the status of her PR application, it would be appropriate to order that any determination of that application would amount to a material change in circumstances supporting a review of the support obligation.

[206] Without limiting what would otherwise be considered a material change in circumstances, any determination of Ms. Strizzi’s permanent residency application or change in her legal ability to obtain employment shall be considered a material change in circumstances for the purposes of a review of child and spousal support.

[207] Ms. Strizzi did not dispute the quantum of support payments made by Mr. Traetto since the date of separation. He made the payments pursuant to the temporary orders and paid additional amounts including just after separation before the temporary order as well as $3100 pursuant to the parties agreement to relocate to Brantford. Mr. Traetto provided receipts and e-transfer documentation to confirm this.

[208] Up until April 30, 2024 he paid a total of $28,488 including both child and spousal support.

[209] Based on the above noted incomes and quantum of child and spousal support the support obligations are as follows:

1. For 2023, spousal support commencing January 1, 2023 for 12 months at a rate of $1503 per month totals $18,036.
2. For 2023 child support commencing April 1, 2023, when the shared arrangement started pursuant to the temporary order, is $1211 for 9 months totaling $10,899.
3. For 2024 from January 1 to March 31 spousal support of $1644 for 3 months totaling $4932.
4. For 2024 from January 1 to March 31 child support of $1515 for 3 months totaling $4545.

[210] This produces a total combined child and spousal support obligation of $38,412 up until March 31, 2024. During this period a total of $28,488 was paid. Arrears are therefore fixed at $9,924 payable by Mr. Traetto to Ms. Strizzi. These arrears shall be paid in full within 14 days of this order.

[211] Commencing May 1, 2024 and monthly thereafter spousal support shall be payable at a rate of $750 per month by Mr. Traetto to Ms. Strizzi, until further order of the court.

[212] Ms. Strizzi acknowledges that the costs order of $750 pursuant to the order of March 19, 2024 remains unpaid. The respondent seeks an order pursuant to Rule 1(8) that she be prevented from taking any further litigation steps until this amount is paid.

[213] I am not prepared to grant that order at this time. While she was clearly in breach of that order, her precarious financial circumstances have been contributed to by the underpayment of support by Mr. Traetto which has resulted in the arrears owing. However, she shall be required to pay these costs in full within 30 days of this order.

[214] On the basis of the foregoing a final order shall issue as follows:

1. The respondent to have sole decision-making for the children.
2. The children shall reside in the primary care of the respondent.
3. The respondent shall be permitted to have the children baptized without the consent of the applicant.
4. The applicant shall have the right to make independent inquiries with any third parties involved in the health, education, and welfare of the children. The respondent shall sign any documents necessary to facilitate this.
5. The respondent shall keep the applicant apprised of important decisions with respect to the children’s health, education, and welfare and provide the contact information for any third parties involved with the children.
6. The applicant to have parenting time as follows: a. Alternate weekends on Friday at 5 PM to Sunday at 7 PM. b. Each Wednesday from 5 PM to 7 PM. c. Christmas holiday shall be divided equally starting the last day of school at 5 PM, with each parent having parenting time with the children for one week. This week shall alternate every year, commencing with the applicant having the first week in even years and the respondent having the first week in odd years. d. Easter, Thanksgiving, and Monday to Friday of the March break shall alternate between the parties with the applicant having the children in even numbered years and the respondent having the children in odd-numbered years. e. Each party shall have two non-consecutive weeks with the children during the summer school holidays. In odd years the respondent shall choose first and even years the applicant shall choose first. The party with the first choice shall choose weeks no later than May 1 of each year, with the other party choosing by May 15. f. Any other parenting time as agreed between the parties.
7. The parties shall share the transportation and unless otherwise agreed all exchanges for parenting time shall occur at a police station or supervised access centre.
8. The parties shall not communicate about issues or concerns or expose the children to any parental conflict during parenting time exchanges.
9. Communication between the parties shall take place through a parenting app, such as Our Family Wizard.
10. The parties shall not discuss any information about decision-making, parenting time, or court proceedings with the children or in their presence other than to confirm the parenting schedule outlined herein.
11. The parties shall not expose the children to any negative comments about the other parent or their family, and the parties shall not communicate or behave in a negative manner towards the other parent during parenting exchanges or otherwise when the children are present.
12. There shall be no child support payable by the applicant to the respondent until further order of the court.
13. Arrears in child and spousal support payable by the respondent to the applicant from January 1, 2023 to March 31, 2024 are hereby fixed at $9,924 and shall be payable in full within 14 days of this order.
14. The parties shall maintain the children on any benefits and insurance available to them through their employment.
15. Commencing April 1, 2024 and monthly thereafter the respondent to pay the applicant spousal support in the amount of $750 per month.
16. The applicant shall provide independent confirmation of any determination of her permanent residency application or any change in her legal ability to obtain employment within five days of receiving notice of any determination or change.
17. Without limiting what would otherwise be a material change in circumstances, any determination of the applicant’s primary residence application or change in her legal ability to obtain employment shall be considered a material change in circumstances for the purposes of a review of child support and spousal support.
18. The costs order of March 19, 2024 of $750 payable by the applicant to the respondent has been satisfied in full within 30 days of this order.
19. Approval of the order is waived.

[215] If either party is seeking costs and the parties are not able to agree, the party seeking an order for costs shall serve and file written submissions, not to exceed three pages, excluding attachments which shall include a bill of costs and any offers to settle by June 21, 2024, with the responding party filing written submissions, not to exceed three pages, excluding attachments which shall include a bill of costs and any offers to settle by July 5, 2024. If no submissions are received from the party seeking costs by the deadline there shall be no order as to costs.

Released: June 6, 2024 Signed: “Justice S. E. J. Paull”