ONTARIO COURT OF JUSTICE

DATE: June 10, 2024

COURT FILE No.: D42579/22

BETWEEN:

NADERA JACKSON

Applicant

— AND —

JERMAINE BANTON

Respondent

Before Justice Melanie Sager

Heard on May 6, 7 and 10, 2024

Reasons for Judgment released on June 10, 2024

Johnathan D. Pecchia.............................................................................. counsel for the applicant

Jermaine Banton................................................................................................. on his own behalf

SAGER, J.:

Introduction

[1] A trial proceeded in this case to determine the issues of decision making responsibility, parenting time and child support for the parties’ son Jhamiel Anthony Banton (Jhamiel), born […], 2019.

Background of the parties

[2] The parties are both originally from Jamaica. They met in Toronto in or around the summer of 2017. They began living together in or around September 2017 and were married on November 25, 2017. The Applicant (mother) is a Canadian citizen and the Respondent (father) is a permanent resident of Canada.

[3] The parties have one child together, Jhamiel who is now 5 years old. The father has two other children from previous relationships who are 16 and 7 years of age. His 16 year old son recently began living with him and his 7 year old son lives in Brampton with his mother. The mother has a 25 year old son from a previous relationship who lives independently from the mother in Kitchener.

[4] The father works full time as a warehouse worker earning approximately $32,000.00 per year. The mother is a trained Child and Youth worker but is currently unemployed as she pursues a career as a dancehall and reggae artist. She receives Ontario Works to support herself and Jhamiel when he is in her care.

[5] When the parties separated on a permanent basis in November 2020, with the father’s consent, Jhamiel continued to reside primarily with the mother and the father exercised parenting time as agreed to by the parties.

[6] On July 23, 2022, the mother left Jhamiel in the father’s primary care where he remained until November 28, 2022. During this period, the mother did not have in person parenting time with Jhamiel for reasons that are disputed by the parties.

Background of the litigation

[7] The mother issued her Application on April 22, 2022, seeking orders for sole decision making responsibility and child support for Jhamiel. She also requested orders permitting her to obtain government issued documents for Jhamiel and to travel with him outside of Canada without the father’s written consent and for the father to maintain extended health benefits for Jhamiel available to him through his employment.

[8] The father’s Answer and Claim was filed with the court on July 25, 2022. He asks the court to grant him an order for joint decision making responsibility for Jhamiel or in the alternative sole decision making responsibility. He asks for parenting time with Jhamiel, child support from the mother, an order that either party can obtain government issued documents for the child and that neither parent shall be permitted to travel outside of Canada with the child without obtaining the other parent’s prior written consent. In addition he seeks orders requiring both parents to maintain extended health benefits for Jhamiel as well as contribute towards his special or extraordinary expenses.

[9] On November 16, 2022, the Case Management Judge, Justice Carolyn Jones, heard competing motions brought by the parties requesting orders granting them temporary sole decision making responsibility for and primary care of Jhamiel. On November 28, 2022, Justice Jones made temporary parenting orders that resulted in a shared parenting regime such that Jhamiel spends equal time in each parent’s care.

[10] Justice Jones ordered that the parties are to cooperate to attempt to agree on childcare arrangements for Jhamiel located at a mid-way point between their homes but that if they cannot agree, each party shall be responsible for making their own childcare arrangements for Jhamiel when in their care.

[11] With respect to decision making responsibility, Justice Jones ordered that each parent shall,

(a) make day-to-day decisions for Jhamiel when in their care;

(b) share any important information pertaining to Jhamiel’s welfare with the other parent in a timely manner;

(c) have the same right to make inquiries and obtain information from any third party professionals involved with Jhamiel;

(d) keep the other parent informed of the name, address and contact details of any professionals involved with the child;

(e) if any significant decisions arise pertaining to Jhamiel, the parents shall confer to discuss the decision, with a view to reaching an agreement on the decision but that if they are unable to agree, they shall,

(i) jointly consult any professional involved with Jhamiel in the area of the disagreement to seek their recommendation;

(ii) if still unable to reach an agreement after consulting the professional, they may pursue mediation; and,

(iii) if an agreement cannot be reached after taking the above steps, either parent may apply to the court to address the issue.

And,

(f) ensure that Jhamiel is not exposed to any negative or disparaging comments about the other parent or their family.

[12] On November 28, 2022, Justice Jones also ordered the mother to provide the father with coloured photocopies of any of Jhamiel’s government issued documents in her possession including his birth certificate, OHIP card and passport.

[13] On February 2, 2023, the parties attended in court and spoke to the issue of Jhamiel’s enrollment in daycare and school as the parties could not agree on where to register him. Justice Jones adjourned the matter to April 13, 2023 and ordered the parties to make further enquiries into possible daycare/schools at the mid-point between their homes and to make “best efforts to exchange this information by 15 March 2023”.

[14] After court appearances on April 13, July 26 and July 27, 2023, the issue of where Jhamiel would attend daycare/school could not be resolved and a motion was scheduled for August 24, 2023.

[15] On August 24, 2023, the parties attended in court on their respective motions and advised the court that they were engaged in discussions to resolve the issue of where Jhamiel would attend school in September 2023, and required additional time. As a result, the motion was adjourned to August 29, 2023, when an order was made on consent detailing where Jhamiel would be enrolled in daycare and school as of September 2023. The motions were adjourned to September 8, 2023, so that if the parties were unsuccessful in enrolling Jhamiel in the agreed upon school further arguments could be made on where Jhamiel should be registered.

[16] On September 8, 2023, the parties attended in court and advised that they obtained confirmation that Jhamiel can be enrolled in the school agreed to at the mid-point between their homes. Justice Jones made the following orders on consent:

(a) Jhamiel shall be enrolled in Year 1 Kindergarten at Brookhaven Public School;

(b) Neither parent shall change the child’s school placement from Brookhaven P.S. without the written consent of both parents or a court order.

(c) If for some reason Jhamiel is unable to continue his school placement at Brookhaven P.S. “any decision relating to the child’s school enrolment or placement shall require the written consent of both parents or a court Order”.

(d) Neither parent shall make any significant education decision for Jhamiel without the written consent of both parents or a court order.

(e) Both parents are equally entitled to information from the school and will make their own arrangements to receive that information.

(f) The parents shall share with each other, in a timely manner, any important information regarding Jhamiel’s general health and welfare and if possible in advance of a particular event.

[17] On January 16, 2024, this matter was placed on the May 2024 trial sittings and a Trial Management Conference was scheduled for March 28, 2024. On this same date, Justice Jones ordered the mother (again) to provide the father with a photocopy of the child’s Health Card and Birth Certificate by January 30, 2024, and the father to provide the mother with a copy of the child’s passport by the same date.

[18] On January 16, 2024, Justice Jones’s endorsement includes the following direction:

“It is the expectation of the court that both parents will notify Canada Revenue Agency (CRA) of the terms of the parenting Order granted 28 Nov 2022 & will provide CRA with a copy of the Endorsement/Order immediately, if they have not already done so.”

[19] On March 28, 2024, a Trial Management Conference was held and Justice Jones’s endorsement included the following:

“RF [Respondent father] complied [with] endorsement of 16 Jan 2024 relating to the notification to CRA of the current parenting Order terms

AM’s [Applicant mother’s] counsel advises the AM [Applicant mother] has not done so.”

[20] The trial of this matter proceeded over three days. Both parties gave evidence in chief by affidavit and were cross examined. The mother called evidence from two additional witnesses; her adult son and a friend. Both gave evidence in chief by affidavit and were cross examined.

The orders requested by the parties at trial

[21] Both parents ask the court to grant them sole decision making responsibility and primary care of the child. They each ask for a parenting order that provides the other parent with parenting time on alternate weekends. The mother asks the court to order the father to pay child support based on an annual income of $33,119.00 retroactive to November 25, 2020. The father asks the court to order the mother to pay him child support based on an annual imputed income of $50,000.00 but does not specify the start date for support.

[22] At the trial the father gave evidence of his intention to move to Brampton. Whether such a move would result in a relocation became an issue for the court to decide.

The issues to be decided by the court

[23] The following are the issues to be decided by the court:

1. What decision making and parenting orders are in Jhamiel’s best interest?
2. If the father is granted primary care of Jhamiel, would a move to Brampton, Ontario be a relocation pursuant to the Children’s Law Reform Act, and if so, should such a move be permitted?
3. What if any orders should be made respecting each parent’s right to obtain government issued documents for Jhamiel and to travel with him on vacation?
4. What if any order for child support should be made and what is the commencement date for child support?
5. If the mother is ordered to pay the father child support, should income be imputed to her and if so, in what amount?
6. What if any order should be made for the contribution towards section 7 expenses incurred for Jhamiel by the mother and what is the commencement date for these payments?

The evidence

Issue #1 – What decision making and parenting orders are in Jhamiel’s best interests?

The Law

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

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

(a) health,

(b) education,

(c) culture, language, religion and spirituality, and

(d) significant extra-curricular activities.

[25] Section 20(5) of the Act reads as follows:

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.

[26] Subsection 21 (1) of the Act 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.

[27] Any proceeding with respect to children is determined with respect to the best interests of the particular child before the court in accordance with the considerations set out in section 24(3) of the Act. The court has considered these factors, where relevant.

[28] 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.

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

[30] Section 28 of the Act sets out the different types of parenting orders that a court can make.

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

[32] 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.

The relevant uncontested evidence

[33] The following is a summary of the relevant uncontested evidence:

(a) Following the parties’ separation in November 2020, Jhamiel had his primary residence with the mother.

(b) From July 23, 2022 until November 2022, Jhamiel had his primary residence with the father and did not have any in person contact with his mother.

(c) The father tried to facilitate parenting time for the mother but insisted on the police station as the pick up and drop off location. The mother objected to the use of the police station as the pick up and drop off location and as a result, the mother had no in person parenting time with Jhamiel for 4 months.

(d) When the mother asked the father to return Jhamiel to her primary care in or around August/September 2022, the father refused to do so and asked the mother to enter into a shared parenting agreement which provides that Jhamiel spend equal time with them.

(e) Since November 28, 2022 the parties have followed a shared parenting arrangement ordered by Justice Jones following a motion that was argued on November 16, 2022.

(f) The parties were unable to agree on what daycare and school Jhamiel should attend and required court intervention to resolve the issues on a temporary basis pending trial.

(g) The mother wants Jhamiel to attend a French school. The father is opposed to Jhamiel attending a French school as neither parent speaks French but he is agreeable to Jhamiel attending a school with a French immersion program.

(h) The parties are unable to agree on the cause of Jhamiel’s challenging behaviour identified by his school or how to address the issue despite recommendations made to the parents by the school.

(i) The parties have been unable to agree on whether Jhamiel should see a pediatrician to determine if he may have Attention Deficit Hyperactivity Disorder (ADHD).

(j) The parties do not communicate very well and most of their communication is in writing.

(k) In the past when the parties have argued, the mother threatened the father with deportation from Canada.

(l) The parties have been unable to agree on the arrangements for Jhamiel’s care if one or both of them are travelling outside the country and have had arguments about this issue.

(m) When the mother travelled to Jamaica without Jhamiel between February and March 2024 for two weeks, her older son stayed with him in Toronto and did not take Jhamiel to school for a week.

(n) Neither party raised any concerns with the other parent’s fundamental physical care of Jhamiel.

(o) After Jhamiel went to live with the father in July of 2022 the mother did not cooperate to allow for the father to receive the child tax benefit.

(p) When the court directed the parties to notify the Canada Revenue Agency (CRA) of the shared parenting order made by the court on a temporary basis, the mother did not comply with the court’s direction as she believed that the court did not have the authority or jurisdiction to order her to contact the CRA.

(q) The father believes the temporary shared parenting arrangement has not been successful and it is not in Jhamiel’s best interests for the court to order a shared parenting regime following trial.

(r) While the mother asks for an order for sole decision making for Jhamiel and that he has his primary residence with her, she would comply with a shared parenting regime if the curt ordered one. She agrees with the father that they cannot share decision making responsibility for Jhamiel.

(s) The parties both agree that joint decision making is not feasible and therefore, not in Jhamiel’s best interests.

The relevant contested evidence

[34] The father’s position is that he is the stronger parent and better able to meet Jhamiel’s day to day needs as he has consistently demonstrated a commitment to putting Jhamiel’s needs before all else. Conversely, he argues that the mother has consistently demonstrated an inability to put Jhamiel’s needs before her own and as a result Jhamiel has suffered since the shared parenting arrangement was implemented in November 2022.

[35] The father says that while he tried to cooperate and co-parent with the mother, she made it impossible due to being manipulative and quick to anger. Furthermore, he says the mother’s priority right now is her music career and that Jhamiel’s needs have come second to her career aspirations.

[36] The father relies on the evidence set out in the paragraphs below to support his claim that the mother has been unable to meet Jhamiel’s needs since November 2022.

a. The mother’s decision to leave Jhamiel in the father’s full time care in July 2022 without prior notice to or discussion with the father.

[37] In July 2022 when the father was exercising parenting time with Jhamiel, the mother sent him a text message advising him that he would be responsible for Jhamiel’s care on a full time basis. She wrote, “This is a notice that Jhamiel Banton (your son) is now in your care, Jermaine Banton (the father) until further notice.”

[38] The mother says that after leaving Jhamiel in the father’s care for a few days, she texted to inform him that Jhamiel would be staying with him until further notice because “I was tired of Jermaine avoiding his parenting time with Jhamiel, and I wanted him to begin building a strong relationship with our son.”

[39] Eight minutes after the mother texted the father to advise him that he was now responsible for the full time care of their son, the mother texted the father,

“You better make sure you call me or let me see my son when I need to. This is the Nadera that shouldn’t be fucked with. To add, if he ever come back with a scratch or I hear that you drop him elsewhere to be cared for, your ass will be going back to Jamaica and that’s a fucking promise.”

[40] The mother did not discuss the new caregiving arrangements with the father before she advised the father by text message that their 3 and a half year old son would now be living full time with him. She did not discuss any of the arrangements that would have to be made, including daycare.

[41] The mother’s evidence is that “I asked Jermaine to continue bringing Jhamiel to his daycare placement and ensure that he did not miss his classes as that could jeopardize his spot at the daycare and my subsidy.” The mother’s description of what occurred is not accurate. Rather, it is clear from the mother’s communications with the father that she attempted to dictate to the father in an aggressive and threatening manner what she expected him to do.

[42] The mother’s text messages reveal that when she first left Jhamiel in the father’s care she advised him that he could utilize the daycare she had arranged for Jhamiel, and that she notified the officials at the daycare of the change to Jhamiel’s primary caregiver. Once the mother realized she could lose the daycare spot and the subsidy she had in place, she became more aggressive with the father over this issue. On July 25, 2022, the mother texted the father the following message:

“Good morning… And if you let Jhamiel lose his daycare space, you will have to find him one and I will not take him back until you do so, so please make sure you don’t let him lose his space.”

[43] The father advised the mother that he could not take Jhamiel to and from the daycare she had in place as it was too far from his home and he worked hours that made it impossible for him to pick up Jhamiel before the daycare closed. The father told the mother that when he was at work, family helped him by caring for Jhamiel.

[44] On July 26, 2022, the mother texted the father, “I expect him at his daycare. Let’s see if I’m bluffing” and on July 29, 2022 she texted, “I told you to bring Jhamiel to his daycare”.

[45] On July 27, 2022, the mother texted the father instructing him not to allow Jhamiel to miss one more day of daycare and that if he did, the father would be responsible for any costs associated with his absences. The father responded by telling the mother again that when he is at work, extended family cares for Jhamiel.

[46] In her evidence the mother appears to attempt to mislead the court by saying that the father said, “it was not convenient for him to bring Jhamiel to daycare”. The mother contradicts herself by producing a text message from the father in which he tells her that it is not possible for him to bring Jhamiel to his daycare as he works from 10:00 a.m. to 6:00 p.m. or 11:00 a.m. to 7:00 p.m. The father’s inability to take Jhamiel to his daycare had nothing to do with his convenience.

[47] The text messages exchanged between the parties show quite clearly how aggressive and demanding the mother is with the father. She is also rude, unreasonable and threatening. Conversely, most of the father’s text messages do not display any anger or aggression nor does he threaten or insult the mother.

[48] The mother’s conduct in cross examination was consistent with the tone of her text messages to the father. The mother presented as extremely angry, accusatory, aggressive and overly dramatic when giving oral evidence. She spoke very loudly and throughout most of her oral evidence appeared extremely annoyed and hostile.

[49] The mother’s decision to leave Jhamiel in the father’s primary care without prior notice to the father was impulsive and poorly thought out. The mother did not consider how her decision could negatively impact Jhamiel, who was only 3 years old and had been in her primary care since the parties separated a year and a half earlier in November 2020. She did not think about childcare arrangements and how that might be impacted by the father’s work schedule.

b. The mother’s lack of contact with Jhamiel between July and November 2022

[50] The father says that the mother abandoned Jhamiel in July 2022 and did not have any physical contact with him for four months. He says this demonstrates her poor judgment and lack of commitment to Jhamiel.

[51] The mother’s evidence is that between July 23, 2022 and August 27, 2022, Jhamiel was with his father with her consent. She says she “communicated” with the father about Jhamiel over the phone. She gives no evidence that she saw Jhamiel or asked to see him during this time.

[52] The mother says that around August 29, 2022, she asked the father to return Jhamiel to her care but he refused demanding that she signs an agreement committing to an equal time parenting schedule. The mother says that she did not agree to a shared parenting schedule “as I felt it was too much of a disruption to Jhamiel’s schedule, and would risk him losing his spot at daycare.”

[53] The father’s evidence is that in July and August 2022 he made attempts to facilitate parenting time for the mother on the one condition that the drop off and pick up take place at a police station. The mother admitted in oral evidence that she tried to arrange parenting time on “multiple occasions” but that she refused to meet the father at a police station so the in person parenting time did not take place.

[54] The father acknowledges that once the mother asked him to return Jhamiel to her full time care and called the police to assist her in removing Jhamiel from his care, he refused to do so until she agreed to a shared parenting arrangement. The mother admitted that the father began to request a written agreement for equal parenting time after the mother involved the police on September 13, 2022.

[55] The text messages demonstrate that the father made several attempts to facilitate in person parenting time for the mother but she refused to meet him at the police station.

[56] It is surprising to the court that the mother would let four months pass without seeing her three year old son. The father’s request to meet her at the police station, right or wrong, is an insufficient reason for the mother to deny Jhamiel in person contact with her for four months.

[57] The mother showed no insight into how her decision not to exercise in person parenting time with Jhamiel for four months was contrary to his best interests and could be very upsetting for him. The mother had been Jhamiel’s primary caregiver since at least November 2020 when the parties separated. She showed no appreciation of how Jhamiel may have suffered emotionally or psychologically due to her choice not to see him because she refused to meet the father at a police station.

[58] The text messages between the parties show that the father only began to request a shared parenting arrangement in writing after the mother involved the police in September 2022. Before that date, the court accepts the father’s evidence that he tried to facilitate in person parenting time by the mother with Jhamiel but the mother would not meet him at the police station to exchange the child.

[59] The evidence establishes that the mother believes that she had every right to leave Jhamiel with the father in July 2022 without advising him in advance of her intention and then demand that the father return Jhamiel to her care in September 2022 without having an agreement in place as to when Jhamiel will be in his father’s care. The mother expects the father to do as she says. She is not collaborative at all. In fact, she is dictatorial.

[60] The dictatorial way the mother interacts with the father was evident in several incidents that occurred after Jhamiel began spending equal time with his parents in November 2022. These incidents are set out below.

c. Choosing a daycare for Jhamiel located between the parties’ homes

[61] On November 28, 2022, Justice Jones ordered the parties to attempt to agree on a daycare that is at a mid-point between their homes and if they are unable to do so, each party may make their own daycare arrangements. On that same date, Justice Jones ordered the parties to keep each other advised in a timely manner of any important information pertaining to Jhamiel’s welfare.

[62] Despite Justice Jones’s order, the father says the mother unilaterally enrolled Jhamiel in a French daycare and notified him after the fact. On January 4, 2023, the mother texted the father,

“Also, just an update that papi will be starting daycare on Monday, the 9 th of January. As he will be in your care, you’ll be the one to drop him at the daycare and pick him up. Then you’ll drop him off at the daycare on the morning of the 10 th where I’ll pick him up to keep him for my 5 days…”

The father’s responding text message says,

“Good morning! What is the name of the daycare?”

The mother replies,

“Good morning. Garderie du soleil levant.”

[63] In her evidence in chief, the mother contradicts herself. She says that she consulted the father prior to enrolling Jhamiel in the daycare but also says “When I attempted to consult with Jermaine regarding Jhamiel’s enrollment, it was difficult as he did not answer promptly. Accordingly, I made the final decision to enroll Jhamiel.”

[64] In cross examination, the mother was asked if she violated the court order by enrolling Jhamiel in the daycare without the father’s knowledge. She denied the allegation saying she told the father by phone and he was aware.

[65] The father’s evidence on this issue is more persuasive than the mother’s evidence. The exchange of text messages between the parties reveals that the father did not know the name of the daycare. When the mother provided the name and the link to the website to the father she makes no mention of previously providing this information to him. Furthermore, Justice Jones’s order was for the parties to cooperate to attempt to agree on a daycare. She did not order the mother to make the decision and then advise the father which is what the mother did; whether by phone or by text message. The mother’s evidence was that she told the father, not that they discussed it at all and made the decision together. For these reasons, the father’s evidence on this issue is preferred over that of the mother.

d. Choosing Jhamiel’s school for September 2023

[66] On February 2, 2023, Justice Jones ordered the parties to research available options for Jhamiel’s daycare and school located at a mid-point between their homes and to exchange the information by March 15, 2023. The mother had made her intentions known that she wanted to maintain Jhamiel in a French daycare and have him attend a French school in September 2023. As the father had reservations about the mother’s choices given neither parent speaks French, Justice Jones ordered the parties to investigate other options.

[67] The father’s evidence is that he did the research ordered of him and on March 23, 2023, he provided the mother’s lawyer with a list of four schools. He says she did not respond to his proposal for three months. The mother once again contradicted herself on this issue. In her evidence in chief she acknowledges that on March 23, 2023, the father proposed six schools for Jhamiel to attend. In cross examination when asked if she took three months to respond to the father’s list of proposed schools, the mother’s memory was not as good. She could not recall when she received the father’s list of proposed schools and while she could not remember when she responded she did recall that it was immediate. She also acknowledged having an issue with all of the schools he proposed.

[68] The mother acknowledged that she did not provide any alternative suggestions after rejecting the father’s proposed schools. She said that since it was not mandatory for Jhamiel to attend Junior Kindergarten, she felt he should attend the French daycare for another year. She said this would provide Jhamiel with stability until the court proceedings were completed. When asked if she simply ignored the father’s proposal for three months she said that “I made my decision clear that Jhamiel was to stay back one more year before attending school.”

[69] The mother admitted that she did not comply with Justice Jones’s order to investigate school options and provide those options to the father by March 15, 2023. She did not comply with the order as she wanted Jhamiel to stay in the French daycare.

[70] When pressed on the issue of Jhamiel remaining in the French daycare, the mother admitted that Jhamiel would not be allowed to remain in his current French daycare and that she would have had to find him another one.

[71] The mother’s evidence on this issue once again reveals her inability to work cooperatively with the father on important issues impacting Jhamiel and demonstrates her willingness to ignore court orders. She believes that she is the decision maker and that the father must simply capitulate to her demands regardless of what the court order states.

[72] In addition to highlighting the mother’s uncooperative behaviour, her evidence on this issue brings her credibility into issue. She said maintaining Jhamiel in daycare for an extra year would provide him with stability especially given that he changed daycare placements three times. This makes little sense given she knew that she would have to find a new daycare for Jhamiel as he could not remain in his current daycare unless he attended the French school associated with the daycare. The mother’s proposal would have the opposite effect of her wish to maintain stability for Jhamiel.

[73] As the mother failed to propose a single school for Jhamiel to attend at the mid-point between the parties’ homes as ordered by Justice Jones, the father had to bring a motion for an order for Jhamiel to attend the French Immersion program at Brookhaven Public School. The mother acknowledges that she did not agree to Jhamiel attending Brookhaven P.S. until the date of the motion, August 29, 2023, as her position was to hold Jhamiel back from school for a year.

[74] After requiring the father to bring a motion on the eve of the commencement of the school year to address which school Jhamiel would attend, the mother admits that she went to Brookhaven P.S. and enrolled Jhamiel without the father and without advising him in advance. The Student Data Verification Form completed by the mother lists her as the primary contact and includes her home address as the child’s address. She listed the father as the secondary contact [2] and her son and boyfriend as the 3 rd and 4 th people to contact if the parents cannot be reached.

[75] In cross examination, the mother was asked about enrolling Jhamiel in school without the father’s knowledge. She said in a conclusory, matter of fact manner, that she went to the school and due to the issue being time sensitive she enrolled Jhamiel and communicated the information to the father afterwards.

[76] The mother’s failure to engage with the father to choose a daycare and school for Jhamiel is not only evidence of her inability to collaborate with the father, but it also raises very serious concerns for the court regarding her ability to meet Jhamiel’s needs. The mother provided no reasonable explanation for keeping Jhamiel out of school for a year when he was eligible to attend junior kindergarten. In addition, the mother is unable to reflect on her behaviour at all and acknowledge how her choices negatively impacted the father and, more importantly, Jhamiel.

e. Issues with Jhamiel’s behaviour at school

[77] The parents both gave evidence that the school advised them of concerning behaviour displayed by Jhamiel in the classroom. The parties had a meeting with the school officials [3] and a recommendation was made for Jhamiel to have a Pediatric Assessment. According to a letter prepared by the school dated October 30, 2023, Jhamiel was engaging in challenging behaviour including running away from staff, hitting, spitting, biting, punching, slapping others in the face, climbing shelves, and having sudden outbursts of shouting.

[78] At the meeting with school officials, the father says the mother was argumentative and blamed the school. The mother admitted she was argumentative with the school during the meeting. The father’s assessment that the mother blamed the school for Jhamiel’s behaviour is confirmed by the mother’s affidavit and oral evidence. She says that she feels that the school and the classroom environment are responsible for Jhamiel’s behaviour. She says that on October 18, 2023 [4], she went to observe Jhamiel in the classroom which she described as “chaotic” and requiring an extra support worker “as there were children with behavioural issues and special needs”.

[79] The mother also sent the father text messages in which she says she would like Jhamiel removed from the classroom if not the school entirely. She says that Jhamiel does not behave at his daycare the way described by his school teacher. She says as soon as he is dropped off at school and enters the classroom his body language changes and he is tense. Her text messages raise concerns for the court about her inability to working cooperatively with Jhamiel’s school.

f. Follow up with doctors to address Jhamiel’s behaviour at school

[80] The father showed appropriate concern for the issues raised by the school. He says right after the meeting with the school, he spoke with the mother and they agreed that she would make an appointment for Jhamiel to see his family doctor to discuss the issues raised by the school and once doing so, she would give the father the appointment information.

[81] On December 6, 2023, after the mother failed to schedule an appointment for Jhamiel with his doctor, the father took the initiative to book an appointment for Jhamiel with a pediatrician on December 8, 2023. At 9:58 a.m. on December 8, 2023, the father texted the mother and advised her of the appointment for later that day and asked for Jhamiel’s health card.

[82] While the tone of the father’s email to the mother was entirely appropriate, he should have notified her of the appointment on December 6, 2023 when he booked it. The mother’s responding text messages did not take issue with the late notice. Conversely, the mother wrote,

“I will not and I’ve already made arrangements for Jhamiel to see his doctor on the 12 th , so I don’t understand why you’re trying to confuse things.”

She also wrote,

“First of all, you’re not in the position to take care of anything in regards to Brookhaven because you lack knowledge in this department.”

[83] After attending the appointment with the pediatrician, the father texted the mother and provided her with the doctor’s name and address and told her that she diagnosed Jhamiel with Attention Deficit Hyperactivity Disorder. He writes, “According to Dr. Khurana you were advised during Jhamiel’s last appointment that you should bring him back to see her, but you never did. She said that she thought we had found a different pediatrician to care for Jhamiel.”

[84] In the same text message, the father asks for the details of the doctor’s appointment she booked for December 12, 2023 and says, “I’m hoping we can discuss extra activities for Jhamiel to address the issue.”

[85] The mother’s evidence is that after the meeting with the school and observing Jhamiel in his classroom, “I decided to contact Jhamiel’s family doctor…to address any potential medical reasons for his behaviour. I immediately scheduled the next available appointment…for December 12, 2023 and informed Jermaine, and my intention to first consult with Jhamiel’s family doctor who treated him since he was born.” The mother did not advise the court when she called to make the appointment.

[86] The mother’s evidence is that she did not agree with the pediatrician’s diagnosis nor did Jhamiel’s family doctor who requested the pediatrician’s notes. She says that in her opinion [5], the cause of Jhamiel’s behaviour “was likely environmental” and that the school is not making any changes or improvements to address the chaos in the classroom.

[87] The mother once again contradicted herself. She says in her affidavit evidence, “I took steps to address the concerns by scheduling an appointment with Dr. Berernbaum, to which Jermaine was consulted and advised.” But in cross examination, the mother admitted that she did not tell the father about the December 12, 2023 appointment until December 8, 2023 when the father contacted her to advise of the appointment he made with the pediatrician. She also admitted that she did not share the results of this appointment with the father, obtain any note(s) from the doctor or provide anything in writing from the doctor to the school.

[88] When asked if she thought it was important to share information from Jhamiel’s doctor with the father the mother agreed it was. Given her answer, she was asked why she did not share the outcome of the December 12, 2023 appointment with the father and she said, “because you didn’t tell me you were taking him to a pediatrician”. She said she was “very upset” when the father called and asked for Jhamiel’s health card and told him she would not provide the card to him and that she had made an appointment with his doctor and “these were the steps we would take”.

[89] The mother’s evidence on this issue is extremely suspect. She clearly did not contact the child’s doctor immediately after the meeting with the school on October 24, 2023, as she said she obtained the next available appointment on December 12, 2023. It seems more likely that once the father contacted her on December 8 th , 2023 and advised of the appointment he made with the pediatrician, she contacted the child’s family doctor and made an appointment for December 12, 2023. If this is not the case, she could have easily obtained evidence to corroborate her version of events.

[90] It is also apparent that the mother’s failure to contact the doctor to make an appointment is consistent with her belief that the school and the classroom are the cause of Jhamiel’s challenging behaviour, not a medical reason, making a doctor’s appointment unnecessary.

[91] The mother’s evidence on this issue reveals a level of immaturity and once again the need to put her interests before Jhamiel’s.

[92] On this issue, the court accepts the father’s evidence that he scheduled an appointment with the pediatrician after the mother failed to follow up with Jhamiel’s family doctor.

g. The child tax benefit

[93] As noted above, the father raised with Justice Jones the issue of receiving a share of the available child tax benefits for Jhamiel after the court ordered a shared parenting arrangement. The case management judge directed the parties to notify the Canada Revenue Agency (CRA) of the shared parenting arrangement but the mother failed to do as directed by the court.

[94] The mother said she did not comply with the court’s direction as it is not within Justice Jones’s jurisdiction to order or direct her to communicate with the CRA. She also attempted to justify her refusal to comply with the court’s direction because the father was not paying her child support and the court was refusing to address this fact.

h. Mother’s interaction with Jhamiel’s daycare

[95] When the mother was in Jamaica in May 2023, her partner picked Jhamiel up from daycare three hours late due to some confusion as to who was supposed to pick him up. The court accepts that the error occurred due to a misunderstanding. What is revealing and relevant with respect to this issue is the written communication the mother sent the daycare.

[96] In response to an email from the daycare in which the author said that Jhamiel being picked up three hours late is “UNACCEPTABLE” and that “This situation should NOT happen again. If it does, in our policy, we will be required to contact the children’s aid or the police.” The author advised the parents that a teacher had to wait at the daycare with her granddaughter until Jhamiel was picked up.

[97] The mother’s response to the daycare is written in the same aggressive tone she writes text messages to the father. Rather than being apologetic and ensuring the daycare that this will never happen again, the mother wrote that while she was away the person who was to pick up Jhamiel forgot and that “we are all human, so mistakes can be made”. She also writes that there is no pattern of the parents being late to pick Jhamiel up and “Stating that the children’s aid or police would be contacted is also uncalled for because Jhamiel was not abandoned or you were unable to reach anyone during the situation. There was contact, but the person was late. I feel like this situation is just blown out of proportion as this message tone is not appreciated because this is NOT a typical situation.”

[98] The mother concludes her email to the daycare by telling them that “Jhamiel is one of, if not one of the only kids at this daycare that is WELL taken care of and his dad or I do an excellent job at that. In addition, I’ve NEVER been late to pick up Jhamiel.”

[99] This evidence demonstrates that the mother is not just aggressive and argumentative with the father. She behaves in a very similar manner with the child’s school and daycare. This is cause for concern for the court as the mother’s confrontational personality demonstrates poor judgment which is having a negative impact on Jhamiel.

i. Jhamiel missing school while mother working in Jamaica

[100] When the mother travelled to Jamaica between February 19 th and March 2 nd , 2024, she left Jhamiel in the care of her 25 year old son who stayed at the mother’s home with Jhamiel. The mother’s older son gave evidence at the trial that he did not take Jhamiel to school as he suffers from financial instability and could not afford the cost of public transportation to and from the mother’s home.

[101] When asked who made the decision for Jhamiel to stay home from school for a week, the mother’s older son said it was ultimately his mother’s decision and that she knew he would not be taking Jhamiel to school before she left on vacation. The father took issue with the mother’s failure to make proper arrangements for Jhamiel while she was away and agreed to care for him for the second week of the mother’s trip so he did not miss school.

[102] The mother’s evidence on this issue contradicted that of her older son. She said that while she was away Jhamiel did not go to school because she was having an issue with the school always contacting her instead of the father when there is a problem at school. She said the teacher would send her a message “and then I would respond and then hear nothing”. She said she wanted to have a meeting with the school to deal with this issue before she sent Jhamiel back to school.

[103] The mother’s evidence on this issue highlights the father’s concerns about the mother’s overall care of Jhamiel and her inability to put his needs before her own. The evidence of the father and the mother’s older son align and is much more believable than that of the mother. The mother had a propensity to make up her evidence or tailor it to justify her actions which made her evidence unreliable.

j. Did mother forge father’s signature on Jhamiel’s passport application?

[104] The father claims the mother obtained a passport for Jhamiel by forging his signature. He raised this issue to attack the mother’s credibility. Once again the mother’s evidence on this issue was difficult to believe. The father called sufficient evidence to demonstrate that the mother likely forged his signature to obtain the child’s passport. She says she signed the application with his consent. He says that is not true and when the passport office called him to confirm he consented to the mother obtaining the passport, the mother was calling him on the other line to alert him of what she had done. The mother denies she forged the father’s signature and was only calling him from the passport office to let him know that the clerk was calling him.

[105] Given everything the court learned about the mother during this trial, it is entirely possible that she forged the father’s signature on Jhamiel’s passport application. Whether she did or did not has no impact the court’s finding regarding her credibility. There is sufficient evidence without this issue to conclude that the mother’s evidence lacks credibility.

k. Mother’s ability and willingness to comply with court orders

[106] The mother failed to comply with several orders made by the court in the course of the litigation. They include:

(a) She failed to provide the father with a list of proposed schools for Jhamiel at the mid-point between their homes.

(b) She failed to advise the father that she enrolled Jhamiel in daycare.

(c) After the parties agreed to the school Jhamiel would attend in September 2023, she attended at the school without notice to the father and enrolled Jhamiel.

(d) She failed to advise the father of the outcome of Jhamiel’s doctor’s appointment on December 12, 2023.

(e) She failed to notify the CRA that the court ordered a shared parenting regime.

(f) She failed to provide the father with important information regarding Jhamiel’s wellbeing in a timely manner.

(g) She failed to keep the father advised of the name and contact information of all professionals working with Jhamiel.

[107] The mother’s willingness to repeatedly violate court orders, especially while under the microscope of the court proceedings, is cause for concern regarding her judgment in general.

[108] The mother’s unwillingness to comply with court orders must be considered by the court when structuring a final order. If the court has concerns that the mother will not comply with the terms of a final order, consequences may have to be included in the order to encourage compliance and in an attempt to avoid future litigation.

l. Mother’s evidence regarding her employment/income and its impact on her credibility

[109] The mother’s evidence is she is a trained child and youth worker. She worked in this field before and after Jhamiel was born She says she last worked in May 2022. She intended to return to work but said that she could not work the hours required of her and be available to care for Jhamiel full time. As a result, after separation she began receiving Ontario Works.

[110] The mother is pursuing a career as a reggae singer. She travels to Jamaica a few times a year where she says she performs and promotes her music without pay. She says the promoter pays the cost of her flight and provides her with a daily stipend for her expenses.

[111] The mother’s evidence is that she has paid for recording sessions in Jamaica as well as promotional material for the concerts she performs at. Her son said she is quite popular in some countries and certain communities. He said she is pretty well known in the Caribbean and England.

[112] The mother’s evidence is that she continues to receive Ontario Works and lives in subsidized housing.

[113] The mother’s evidence regarding her music career was very difficult to believe. She says she travels to Jamaica to perform at concerts, records music, and prepares and pays for promotional materials but is not paid for her work. She had a difficult time explaining how she pays for all of these expenses to promote her music if she is not being paid for the concerts she performs at or when her music is streamed while in receipt of Ontario Works.

[114] The mother’s older son believes his mother is paid for her work as a singer and said that she never told him she was not paid. He said that she is working hard and might be saving money for him and Jhamiel to enjoy in the future.

[115] The mother’s sworn financial statements also provide support for the conclusion that she is earning an income from her music or other career. During this litigation she swore two financial statements. They both disclosed an annual budget that far exceeds her income. Her financial statement sworn for trial on April 12, 2024, discloses an annual budget that exceeds her annual income by $24,000.00. According to this same financial statement, her monthly car expenses alone of $1090.85 almost exhaust her declared monthly income of $1232.42.

[116] The first financial statement the mother swore on August 23, 2022 also disclosed an annual budget that exceeded her annual income by $20,000.00.

[117] Despite the fact that the mother’s annual expenses since August 2022 are approximately two and a half times her income, as of April 12, 2024 she only has credit card debt and a consolidated loan totalling $9,367.56. [6]

[118] The mother was asked several times to explain how she is covering expenses that exceed her income by $24,000.00. She was unable to provide a coherent answer.

Conclusions regarding the credibility of the parties

The mother’s credibility

[119] The mother’s evidence was illogical and appeared fabricated at times in an attempt to justify poor judgment and conduct. She contradicted herself and was contradicted by the evidence of her other witnesses.

[120] The mother was intent on attacking the father’s character. When she was faced with having to explain her poor decisions or questionable judgment, she dug in. She was unable to reflect and consider the possibility that in retrospect she has made some poor choices, choices that were harmful to Jhamiel. Had she done this, she may have been able to rehabilitate her credibility.

[121] The mother’s unreliable evidence on the parenting issues together with the lack of any compelling evidence to explain her income and finances is fatal to her credibility.

The father’s credibility

[122] The father gave evidence in a calm and straight forward manner. He came across as forthright and honest even when it was against his interests. His evidence was preferred to the mother’s on almost all of the issues because his evidence was logical and in many instances corroborated by other evidence.

[123] The father’s credibility was bolstered by the fact that his evidence was very child focused. Other than the passport issue, he did not attack the mother personally. Rather, he systematically went through the mother’s conduct and decisions which he argued were not in Jhamiel’s best interests and demonstrated that she should not be entrusted with the primary care of Jhamiel or be given sole decision making responsibility for him.

Conclusions regarding the parenting issues

A) Decision making responsibility

The mother

[124] The court finds that the mother is impulsive and makes decisions without considering how Jhamiel will be impacted. She has shown poor judgment with respect to Jhamiel and puts own her needs before his. Her refusal to exercise parenting time for four months because she would not meet the father at a police station is a striking example of very poor judgment.

[125] The mother’s conduct has created instability for Jhamiel.

[126] The mother has also shown poor judgment by leaving Jhamiel in the care of her older son for two weeks when he was unable to get Jhamiel to and from school. As a result, Jhamiel missed a week of school. Had the father not intervened, Jhamiel would have missed two weeks of school.

[127] The mother has shown poor judgment by failing to comply with court orders on multiple occasions.

[128] The mother has shown that she is unable to work respectfully and cooperatively with the father. She has demonstrated a lack of respect of the father. Her need to demean the father has been given priority over the need to address serious issues impacting Jhamiel.

[129] The mother neglected Jhamiel’s education and general welfare when she failed to schedule a doctor’s appointment after meeting with the school to discuss Jhamiel’s concerning behaviour. After the father took Jhamiel to a pediatrician who thought Jhamiel may have ADHD, she rejected the diagnosis and undertook no meaningful follow up with Jhamiel’s doctor.

[130] The mother’s refusal to acknowledge that if Jhamiel is spitting, biting and hitting others in class and running away from the teachers, there is a problem that must be addressed. Rather she concluded that the school and the classroom are the cause of Jhamiel’s behaviour. As a result, she took no steps to address the issue raised by the school.

[131] The mother has demonstrated aggressive and inappropriate interaction in relation to Jhamiel with the father, the child’s daycare and his school. The mother’s conduct is a pattern that creates a real risk to Jhamiel’s wellbeing. Jhamiel will suffer if the mother is constantly at odds with or in conflict with the father and professionals in Jhamiel’s life.

[132] The mother has been unable to communicate appropriately with the father, the school, the daycare or the child’s doctor. She is rude and threatening in her communication. She does not engage in discussions with the father but rather tells him what he is to do. She does not consider his opinions or input. She told him he was not capable of dealing with the school regarding Jhamiel’s behaviour. In her oral evidence, the mother made it clear that she believes that she knows best and even in the face of a court order to the contrary, she will make the decisions regarding Jhamiel and advise the father after the fact.

[133] The mother acts compulsively as demonstrated in July 2022 when she left Jhamiel in the father’s care without prior notice to him. She puts her needs before Jhamiel’s needs. She has failed to comply with several court orders and has demonstrated poor judgment with respect to Jhamiel’s care, she cannot be entrusted with decision making responsibility for Jhamiel.

The father

[134] The court finds that the father is the better parent to be entrusted with decision making responsibility for Jhamiel. He has demonstrated an ability to meet all of Jhamiel’s physical, emotional, medical and educational needs.

[135] The father is polite and appropriate with the professionals in Jhamiel’s life. He has shown that he is able to listen to the professionals involved with Jhamiel’s and consider their input when making decisions that may have a life long impact on Jhamiel. As a result he makes informed, thoughtful decisions regarding Jhamiel.

[136] The father has consistently demonstrated a willingness and ability to put Jhamiel’s needs first.

[137] The father has attempted to co-parent with the mother. His communications with her are mostly civil and child focused. He tried on numerous occasions to engage with the mother regarding issues impacting Jhamiel only to be dismissed outright by her. When she is rude and offensive in her communication with the father, most of the time he did not engage with her.

[138] The father has demonstrated good judgment when faced with issues impacting Jhamiel’s welfare, including where he should go to daycare and school and how to address the behaviour issues raised by Jhamiel’s school. He has demonstrated that he makes logical decisions that are child focused and driven by Jhamiel’s best interests.

[139] The father has created stability and structure in Jhamiel’s life and demonstrates a good understanding of why this is important for Jhamiel. He ensures he is in school every day and he arranged childcare for Jhamiel when he is working.

[140] The father has demonstrated that he follows court orders. He will comply with any orders to provide the mother with information regarding Jhamiel or to involve her in any decisions impacting Jhamiel. The same unfortunately cannot be said for the mother.

[141] It is in Jhamiel’s best interests that his father has sole decision making responsibility for him. The father is better able than the mother to ensure and promote Jhamiel’s physical, emotional and psychological safety, security and well-being.

[142] As a result of the court’s findings, there will be an order granting the father sole decision making responsibility for Jhamiel. He will be required to advise the mother of any major decisions made impacting Jhamiel’s welfare. It will be up to the father if he asks the mother’s opinion on issues before making a decision.

B) Parenting schedule

[143] The court accepts the father’s evidence that the shared parenting arrangement implemented for Jhamiel in November 2022 is not in his best interests on a permanent basis.

[144] The shared parenting arrangement has created instability for Jhamiel. The different parenting styles of the parents is disruptive and contributes to a lack of routine and structure in Jhamiel’s life. There is not a sufficient level of cooperation between the parties to make an equal parenting regime work for Jhamiel.

[145] Jhamiel requires a parenting regime that promotes stability and structure in his life. This is even more important given the difficulties he is having at school. He needs the consistency of being in one parent’s primary care who will be responsible for his day to day needs and ensure consistency and structure especially during the school year.

[146] As the father is more sensitive to and puts Jhamiel’s needs before his own, has provided Jhamiel with structure and routine and interacts appropriately with the professionals in Jhamiel’s life, it follows that the father should be Jhamiel’s primary caregiver.

[147] Given the evidence, the court finds that Jhamiel should have his primary residence with his father. The mother should have regular and frequent parenting time with Jhamiel including a share of all religious, school and statutory holidays.

[148] Jhamiel will live primarily with his father and spend alternate weekends and one evening per week with his mother. In addition, Jhamiel will have parenting time with his mother for a share of all statutory and school holidays.

Issue #2 – Is the father’s proposal to move Jhamiel’s primary residence to Brampton a relocation?

[149] The father’s proposed moved to Brampton is a short distance from the mother’s current residence in the west end of Toronto. A move to Brampton will not have a significant impact on Jhamiel’s relationship and parenting time with his mother, and therefore, is not a relocation pursuant to subsection 18(1) of the Children’s Law Reform Act [7]. As a result, an analysis of whether the move should be permitted is not necessary.

Issue #3 – What if any orders should be made respecting each parent’s right to obtain government issued documents for Jhamiel and to travel with him on vacation?

[150] As the parties have been unable to communicate with one another in an effective manner, it is not in Jhamiel’s best interest to require the father to obtain the mother’s consent to obtain government issued documents for Jhamiel but he should be required to provide her copies of these documents.

[151] Both parties have travelled with Jhamiel on vacation and should be permitted to continue to do so. To ensure that Jhamiel does not miss school for travel, the mother will be required to obtain the father’s permission to take Jhamiel out of Canada on vacation which consent shall not be unreasonably withheld. They shall be required to provide the other parent with advance notice of any travel plans and a detailed itinerary of the vacation.

Issues #4, 5 and 6

Child Support

(i) Prospective child support

The Law

[152] Child support from the date of the Application is prospective child support and governed by Section 33 of the Family Law Act. Child support is presumptively payable from the date of the claim set out in the Application or Answer and Claim. This presumption has not been rebutted by either party.

[153] As the Application was issued on April 22, 2022, child support from that date forward is prospective child support.

[154] The mother seeks an order for prospective child support from the father pursuant to The Child Support Guidelines (the Guidelines) including contribution towards the cost of section 7 expenses for Jhamiel, specifically childcare, based on the father’s 2022 annual income.

a. Child Support payable by the father to the mother for the period of April 22, 2022 until July 23, 2022 when primary care of Jhamiel changed from the mother to the father.

[155] In 2022, according to the father’s Income Tax Return he earned an annual income of $33,119.00. This results in table child support for Jhamiel of $283.00. Prospective child support is presumptively payable by the father to the mother for the three month period between April 22, 2023 and July 23, 2022. During this period of time the father paid the mother a total of $550.00 in child support for which he shall receive a credit against this order.

[156] The mother also seeks contribution towards the cost of childcare for Jhamiel for 2022. She has produced a receipt for childcare expenses in 2022 totalling $213.00. The Divorcemate calculations provided by the mother indicate the father’s share of childcare for this period is $11.00 per month or $33.00 for the period of April to July 2022.

[157] The mother’s evidence is that she last worked in May 2022 as a child and youth worker. After that date she has been in receipt of Ontario Works. The mother also returned to school in 2022 but exactly when, for how long and if she attended full time or part time is unclear. The evidence does not provide a clear timeline of when the mother required childcare post April 22, 2022, to permit her to work or attend school.

[158] The mother has the onus of demonstrating that the section 7 expense she is asking the father to contribute towards is reasonable and necessary. As a result of the lack of evidence to demonstrate the need for childcare for Jhamiel between April and July 2022, there will be no order requiring the father to contribute towards this cost for that period.

b. Child support payable by the parties for the period of July 23, 2022 to November 28, 2022 when Jhamiel was in the father’s primary care.

[159] For this period of time when Jhamiel was in the father’s primary care, the father is requesting table child support from the mother and the mother is seeking an order requiring the father to contribute towards the cost of section 7 expenses incurred by her for Jhamiel, specifically childcare.

(a) The mother’s claim for child support (contribution towards section 7 expenses) for this period

[160] The father is not obliged to contribute towards the cost of childcare incurred by the mother between July 23, 2022 and November 28, 2022, as Jhamiel was in his primary care. The Guidelines provide that a parent may be required to contribute towards the cost of childcare incurred by the other parent to work or attend school if that person has “the majority of parenting time”. As the mother did not have the majority of the parenting time for the period of July to November 2022, her claim for this period fails.

(b) The father’s claim for child support for this period

[161] As the father served and filed an Answer and Claim seeking child support in July 2022, child support is presumptively payable by the mother to the father from that date until November 2022, as Jhamiel was in his primary care.

[162] In order to determine the mother’s child support obligation for this period, the court must determine the mother’s income.

####### (i) What is the mother’s income for the purpose of determining her child support obligation?

[163] The mother says she is currently not working and in receipt of Ontario Works. She is also pursuing her music career.

[164] The father says the mother is underemployed and that income of $50,000.00 annually should be imputed to her for the purpose of child support.

####### The Law

[165] Subsection 19(1) of the Child Support Guidelines grants the court the authority to impute income to a parent if the court considers doing so appropriate in the circumstances including when a parent is intentionally underemployed or unemployed, it appears that income has been diverted which would affect the level of child support payable pursuant to the Guidelines, or when a parent has failed to provide income information when under a legal obligation to do so.

[166] 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.

[167] The Ontario Court of Appeal in Drygala v. Pauli, [2002] O.J. No. 3731(Ont. CA), 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 the needs of any child or by the reasonable educational or health needs of the parent or spouse?
3. If not, what income is appropriately imputed?

[168] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.). 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.

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

[170] 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.

[171] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, at paragraph 23. It must be reasoned, thoughtful and highly practical: See: 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.).

[172] The court may impute income where it finds that a party has hidden or misrepresented relevant information respecting their income to the other party or to the authorities. This includes cases where the evidence indicates that a party earns cash income that they do not declare for income tax purposes. See: Kinsella v. Mills, 2020 ONSC 4785; Sobiegraj v. Sobiegraj, 2014 ONSC 2030 (S.C.J.); Lu v. Zhao, 2012 ONSC 5354 (S.C.J.), at para. 26, aff’d 2014 ONCA 12 (C.A.), at para. 5).

[173] Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them. See: Szitas v. Szitas, 2012 ONSC 1548; Woofenden v. Woofenden, 2018 ONSC 4583.

[174] A person’s lifestyle can provide the basis for imputing income. See: Aitken v. Aitken [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373.

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

[176] The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines and impute income. See Smith v. Pellegrini, [2008] O.J. No. 3616, (Ont. S.C.); Maimone v. Maimone, [2009] O.J. No. 2140, (Ont. S.C.). The parent must make full and complete financial disclosure to ensure that the information required to make a decision on the issue is before the court. Charron v. Carriere, 2016 ONSC 4719

####### Analysis of the evidence

[177] The mother has experience working as a Child and Youth Worker as recently as May 2022. In 2022 she returned to school to pursue a degree in social work. The mother’s education and work experience are evidence of an ability to earn an income.

[178] In 2020 the mother’s Income Tax Return discloses $15,879.32 in gross income from “community work” and net income after expenses of $10,584.59 plus $18,000.41 in other income for a total net income of $28,585.00. In 2021 her Income Tax Return discloses gross income from working in “home health care” of $11,511.14 and net income after expenses of $9,026.05 plus $19,600.00 in other income for total net income of $28,297.05. In 2022 the mother earned $2888.00 in net business income, $3,500.00 in other income and $6,289.54 in social assistance for a total income of $12,677.64.

[179] The mother is no longer earning an income as a Child and Youth worker. She is pursuing her music career. The mother has every right to pursue a music career. The court must examine if this is a reasonable career choice given her child support obligations.

[180] The mother claims she is not earning any income from her music, yet she refers to her travel for music in written correspondence as “work”. Her older son believes she earns an income from her music. She admits to travelling to Jamaica at least 2-3 times per year but the evidence suggests she travels more than that given that both her older son and the father have cared for Jhamiel when the mother travels.

[181] The mother’s sworn Financial Statements disclose that since commencing proceedings in 2022, she has incurred expenses that are more than double her disclosed income.

[182] The mother spends money on recording music and promoting her songs but was unable to adequately explain how she does that while on Ontario Works and not earning any additional income.

[183] The mother spends over $1000.00 per month maintaining her car when her monthly income is only $1232.42.

[184] The court can only conclude from the lack of a reasonable explanation for the discrepancies in the mother’s income and expenses that she has not disclosed all sources of her income.

[185] Even if the court’s assumption is wrong, there is ample evidence before the court to conclude that the mother is underemployed as she can pursue work as a Child and Youth worker or in the field of social work given her education and work history. She has chosen not to pursue employment in these fields in which she has experience and as a result she is either intentionally unemployed or underemployed.

[186] As the mother has provided no evidence to demonstrate that her unemployment or underemployment is required by virtue of reasonable educational or health needs or the needs of a child, the court can impute income to her for the purpose of child support.

[187] Given that the mother discloses an annual budget of $38,759.40 in her April 12, 2024 sworn Financial Statement, it is entirely reasonable and appropriate to impute an income to her of $47,000.00 for the purpose of determining her child support obligation as supported by the Divorcemate calculations attached to this Judgment. A person who earns a gross income of $47,000.00 annually in Ontario nets $3226.00 per month or $38,712.00 per year. Given the mother has an annual budget of $38,759.60, it is reasonable to conclude that she earns a gross annual income equal to $47,000.00 to meet her annual expenses.

####### Conclusion regarding the mother’s income for the purpose of prospective support

[188] The court finds that the mother is either earning or capable of earning $47,000.00 annually.

[189] The mother will be required to pay the father child support for the period of July 23, 2022 to November 28, 2022 based an annual imputed income of $47,000.00 and the Child Support Guidelines.

[190] The mother will be required to resume paying the father child support commencing September 1, 2024, based on an annual imputed income of $47,000.00 and the Child Support Guidelines as Jhamiel will be in the father’s primary care pursuant to this judgment.

c. Child support payable for the period of December 2022 to the date of trial.

[191] The mother asks the court to require the father to contribute towards the cost of childcare she incurred for Jhamiel as of November 28, 2022, when she obtained a shared parenting order from the court.

[192] As set out above, the father is not obliged to contribute towards the cost of childcare incurred by the mother after November 28, 2022, as the parties had shared parenting of Jhamiel. In other words, the mother cannot satisfy the statutory requirement of having “the majority of parenting time” to entitle her to an order requiring the father to contribute towards the cost of childcare incurred by her. Therefore her claim for this period fails.

[193] Neither party called evidence in support of an order for table child support or any other amount of child support for the period of November 28, 2022 to date.

Retroactive child support

The parties’ positions and the evidence

[194] The mother asks the court to order the father to pay table child support and contribute towards the cost of section 7 expenses (childcare) back to November 25, 2020, the date of separation.

a. Section 7 expenses

[195] The mother’s evidence is that she worked between 2020 and May 2022 as a Child and Youth Worker. To allow her to work, the mother enrolled Jhamiel in daycare.

[196] No oral evidence was given by the mother on the need for section 7 expenses or the cost.

[197] The mother’s document brief filed for the trial contains copies of receipts for her actual daycare costs for 2021, 2022 and 2023. For 2020, the mother has provided a statement from the City of Toronto that states the daily fee she was required to paid in 2020 based on her income but provided to evidence of what she actually paid for daycare in 2020. The documentary evidence confirming her childcare costs were not made exhibits at the trial.

[198] The mother’s document brief also contains Divorcemate calculations for 2020 to 2022 to show the father’s after tax share of the childcare costs. No reference was made to the calculations in the mother’s closing submissions. A review of the calculations for 2020 shows that the mother simply took the day rate she was obliged to pay of $2.25 based on her income and multiplied this amount by 365 days in the year and stated her total childcare costs for 2020 to be $819.00 without any evidence to demonstrate that she actually was out of pocket for this amount.

[199] The court accepts that the mother was working between November 2020 and May 2022, albeit limited hours, as supported by her Income Tax Returns and that Jhamiel was in daycare for which the mother had a subsidy. What is unclear is how much the mother worked and whether she required daycare to allow her to work the amount that she did.

[200] Based on the mother’s Divorcemate calculations, she is seeking the total sum of $372.00 in retroactive child support as contribution by the father towards the cost of childcare incurred by her for the period of December 2020 until April 22, 2022 [9].

[201] The father gave not evidence on this issue.

b. Table child support

[202] The mother’s evidence is that following separation the father left her with a car loan of approximately $17,000.00 for a vehicle he asked her to purchase. She says he sent her money after separation to pay the debt and would sometimes label the payments “child support”. She says she did not agree that the payments were in fact child support for Jhamiel.

[203] The father says he is not responsible for the mother’s car loan as he did not ask her to purchase the car for which she incurred the debt and they did not require a second car. She made this purchase on her own. Furthermore, he says she traded that car in and applied the value to the vehicle she currently owns.

[204] The mother’s evidence includes a purchase agreement for a 2018 Honda CR-V valued at $35,700.00 and for which she was given a $5000.00 credit for a trade in vehicle. The purchase date on the document is illegible.

[205] The father says he gave the mother child support for Jhamiel after they physically separated and provided “some” of the e-transfers to corroborate his oral evidence. The e-transfers labelled “child support”, are from the period of May 2021 to July 2023, and are in amounts varying between $100.00 and $200.00. Other then this, the father did not give evidence on whether he should be required to pay retroactive child support for Jhamiel including a contribution towards the cost of childcare incurred by the mother.

The law

[206] An order for child support that predates the commencement of this proceeding is retroactive child support. The court’s authority to make retroactive support orders is contained in clause 34 (1) (f) of the Family Law Act. This clause reads as follows:

Powers of court

34 (1) In an application under section 33, the court may make an interim or final order,

(f) requiring that support be paid in respect of any period before the date of the order;

[207] In Colucci v. Colucci, 2021 SCC 24, the court set out the present framework that should be applied for retroactive applications to increase support in paragraph 114 as follows:

a) The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.

b) Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.

c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.

d) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. [10] factors continue to guide this exercise of discretion, as described in Michel v. Graydon 2020 SCC 24. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.

e) Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

[208] The framework in Colucci addresses a request to retroactively increase the support contained in an order or an agreement. It should also be applied, with necessary modifications, for an original request for retroactive support.

[209] As set out in Colucci, the first step for the court is to determine the presumptive date of retroactivity as described in Colucci. The second step will be to determine if the court should depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors will guide the exercise of that discretion, as described in Michel v. Graydon, 2020 SCC 24. The third step will be to quantify the proper amount of support for each year since the date of retroactivity, calculated in accordance with the guidelines. See: L.S. v. M.A.F., 2021 ONCJ 554; M.A. v. M.E., 2021 ONCJ 555; A.E. v. A.E., 2021 ONSC 8189; M.K. v. K.M., 2022 ONCJ 424; T.B. v. O.T., 2023 ONCJ 35; V.S.B. v. B.L.O., 2022 ONCJ 506; Mohamoud v. Farah, 2023 ONCJ 103.

[210] Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. (Michel - par. 25).

[211] Retroactive child support is a debt; by default, there is no reason why it should not be awarded unless there are strong reasons not to do so (Michel – par. 132).

[212] Retroactive awards are not exceptional. They can always be avoided by proper payment. (D.B.S. - par. 97).

[213] The retroactive support analysis equally applies to claims for retroactive section 7 expenses. See: Smith v. Selig (2008) 2008 NSCA 54, 56 R.F.L. (6th) 8 (NSCA); Hetherington v. Tapping, 2007 BCSC 209, 2007 BCSC 209 (BCSC); Surerus-Mills v. Mills [2006] O.J. No. 3839 (SCJ).

Application of the evidence to the law

Effective notice

[214] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair (D.B.S. - par. 121).

[215] The date of effective notice is not relevant when a payor parent has engaged in blameworthy conduct (irrespective of the degree of blameworthiness) (Michel - par. 36).

[216] The mother’s evidence does not clearly state what date she claims to have given the father effective notice that she is seeking child support from him or an increase in the amount he was paying voluntarily. She says, “I have always had difficulties obtaining support payments from Jermaine.” She references a text message from the father sent on January 21, 2022, in which he writes, “you are trying make mi[sic] take care of u that will NEVER happen i rather die.” She does not provide the text message she sent to which the father was replying. He says that his text message was about spousal support and not child support which he was paying voluntarily.

[217] The mother also relies on text messages exchanged between the parties in May and December 2021 in which they appear to be discussing child support although that is not entirely clear.

[218] The court cannot conclude from the evidence that the mother requested child support or an increase in what he was paying from the father prior to commencing court proceedings on April 22, 2022. This may be the case because the father was paying some child support and the mother was satisfied with the arrangement they had in place. Based on the evidence, the court cannot conclude that the mother broached the topic of child support with the father prior to the date of her Application or what is known as formal notice. Therefore effective notice and formal notice occurred on the same day the mother’s Application was issued by the court.

Deviation from presumptive date

[219] As the mother is asking the court to deviate from the presumptive start date for child support, the court must undertake an analysis of the four factors set out by the Supreme Court in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 and modified by Michel v. Grayon, to assess the mother’s retroactive claim. Briefly, there are four points that the court raised:

1. Whether the recipient spouse has provided an understandable explanation for his or her delay in applying for support.
2. The conduct of the payor parent.
3. The circumstances of the child.
4. The hardship that the retroactive award may entail.

[220] None of the above factors are decisive or take priority and all should be considered in a global analysis (D.B.S. par. 99).

####### 1. Delay

[221] Courts should examine whether the reason for delay in bringing the application is understandable, not whether there was a reasonable excuse for the delay. The latter consideration works to implicitly attribute blame onto parents who delay applications for child support (Michel - par. 111).

[222] A delay, in itself, is not inherently unreasonable and the mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted (Michel - par. 113).

[223] Rather, a delay will be prejudicial only if it is deemed to be unreasonable, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made. A delay motivated by any one of the reasons set out below should generally not be understood as arbitrary within the meaning of D.B.S.:

a) Fear of reprisal/violence from the other parent.

b) Prohibitive costs of litigation or fear of protracted litigation.

c) Lack of information or misinformation over the payor parent’s income.

d) Fear of counter-application for custody.

e) The payor leaving the jurisdiction or the recipient unable to contact the payor parent.

f) Illness/disability of a child or the custodian.

g) Lack of emotional means.

h) Wanting the child and the payor to maintain a positive relationship or avoid the child’s involvement.

i) Ongoing discussions in view of reconciliation, settlement negotiations or mediation.

j) The deliberate delay of the application or the trial by the payor.

[224] Once the issue is raised, the recipient must still be responsible in moving the discussion forward. If he or she does not, legal action should be contemplated. A prolonged period of inactivity after effective notice may indicate that the payor’s reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. (D.B.S. - par. 123).

[225] The mother provides no evidence to explain her delay in commencing an Application for child support for approximately a year and a half following separation. While there is no evidence before the court to allow an assessment of whether her explanation is understandable, a delay of a year and a half is not significant.

####### 2. Blameworthy Conduct

[226] Courts should apply an expansive definition of blameworthy conduct (D.B.S. - par. 106).

[227] Blameworthy conduct is anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support. (D.B.S. - par. 106).

[228] Blameworthy conduct is not a necessary trigger to the payor’s obligation to pay the claimed child support. Where present, it weighs in favour of an award and may also serve to expand the temporal scope of the retroactive award (Michel - par. 119).

[229] The failure of a payor to disclose actual income, a fact within the knowledge of the payor, is blameworthy conduct that eliminates any need to protect the payor’s interest in certainty. (Michel – par. 34).

[230] The father paid child support voluntarily commencing in at least May of 2021, 6 months after separation. The father’s 2021 and 2022 Income Tax Returns disclose an annual income of $34,049.00 and $33,119.00 respectively. He made regular, although not monthly, payments until July 2022 when Jhamiel began living with him full time.

[231] The court has no information about the father’s income in 2020. The mother’s Divorcemate calculations show his income in 2020 as $20,270.00 and his table child support at $163.00 per month.

[232] As the father paid at least [11] $1400.00 in child support in between December 2020 and April 2022, he arguably underpaid child support at the most by $3574.00. [12] As the father underpaid child support for this period, there is a degree of blameworthy conduct which is tempered by the fact that he provided the mother with some child support and it was not significantly lower than what he was obliged to pay pursuant to the Guidelines.

####### 3. Circumstances of the child

[233] If there has been a hardship present during their childhood, or if the child needs funds at the time of the hearing, this weighs in favour not only of an award, but also of extending the temporal reach of the award (Michel - par. 120).

[234] Any kind of hardship is not a necessary antecedent to making a retroactive support award. A payor’s support obligation does not disappear when the child no longer requires support. If this factor were to tip the balance against making a retroactive award, then, in essence, the payor will have profited from “holding off” on paying increased child support (Michel - par. 122).

[235] There are plenty of circumstances where a parent will absorb the hardship that accompanies a dearth of child support to prioritize their child’s well-being. There is absolutely no principled reason why this parent should receive any less support as a result of choices that protect the child (Michel - par. 123).

[236] The fact that the child did not have to suffer hardship because of their custodial parent’s sacrifice is not one that weighs against making a retroactive support order. Rather, the recipient parent’s hardship, like that of a child, weighs in favour of the retroactive support award and an enlarged temporal scope (Michel - par. 123).

[237] The fact that the recipient will indirectly benefit is not a reason to refuse to make the retroactive award of support (Michel - par. 123).

[238] As Jhamiel will be living primarily with the father as a result of this Judgment, an argument [13] that the circumstances of the child warrant a deviation from the presumptive start date in the mother’s favour is not persuasive as he will not benefit from such an order. In addition, there is no evidence that the child’s circumstances were disadvantaged by the arrangements between the parties and the amount of support the father was voluntarily paying the mother or that he suffered hardship during the period in question.

####### 4. Hardship

[239] While the focus is on hardship to the payor, that hardship can only be assessed after taking into account the hardship which would be caused to the child and the recipient parent from not ordering the payment of sums owing but unpaid (Michel - par. 125).

[240] If there is the potential for hardship to the payor, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of hardship (Michel - par. 124).

[241] It must be taken into account that the payor had the benefit of the unpaid child support for the full time in which it was unpaid and such monies may have funded a preferred lifestyle (Michel - par. 125). This is a crucial part of the equation (Michel - par. 126).

[242] If children have gone without the appropriate level of support it often means that the recipient parent has been forced to go into debt themselves or spend all their monies, not on property, but on the child (Michel – par. 126).

[243] In all cases, hardship may be addressed by the form of payment (Michel - par. 124).

[244] The father earns an annual income of just over $32,000.00. He is a person of modest means. An order for retroactive child support will create hardship for him especially given that Jhamiel will be in his full time care and he will be responsible for the costs associated with being his primary caregiver.

[245] The court has imputed income to the mother of $47,000.00. She discloses debt of just over $22,000.00 which includes a $13,000.00 overpayment to her of OSAP funds. While she did not provide evidence on this issue it is reasonable to conclude that at least some of her debt is related to providing for Jhamiel who was in her primary care during the period she claims retroactive child support. As a result, the court concludes that a decision not to deviate from the presumptive start date for child support may cause some hardship to the mother.

Conclusion

[246] Between December 2020 and April 22, 2022, when the mother commenced her Application, the father paid the mother child support totalling $1400.00. I accept the father’s evidence that the e-transfers he sent the mother following separation were child support for Jhamiel.

[247] Based on his annual income between 2020 and 2022, the father may not have paid the exact amount required of him pursuant to the Guidelines and the mother may be entitled to some retroactive child support. As set out above, the court engages in a discretionary exercise when deciding whether to grant an order for retroactive child support prior to the presumptive start date and the appropriate start date given the evidence.

[248] In determining this issue, the court also considers that the father may have a claim for a set-off of child support for the period of December 2022 to date, a total of 18 months. Based on the incomes of the parties, that results in a set-off payment by the mother to the father of approximately $2754.00.

[249] While the court has the discretion to order child support payable by the father to mother retroactive to December 2020, given the amounts the father paid the mother in child support, the lack of evidence in support of deviating from the presumptive start date and the claim the father has to child support from the mother for the period of December 2022 to date, the court declines to exercise it’s jurisdiction to deviate from the presumptive start date for child support of April 2022.

[250] The court is not prepared to exercise its discretion to deviate from April 22, 2022, the presumptive start date for child support in this case for the following reasons:

(a) The father voluntarily paid child support between May 2021 and April 2022, and the amount he paid was not significantly lower than what he was obliged to pay pursuant to the Guidelines.

(b) The mother provided no evidence that she advised the father that she was not satisfied with the payments he was making.

(c) The mother provided no reason for the delay in coming to court to obtain an order for child support.

(d) The child would not benefit from a retroactive order in the mother’s favour.

(e) There is no evidence that the child was disadvantaged or suffered hardship due to the father’s underpayment of child support.

(f) As the child will be in the father’s primary care and he has a lower annual income than the mother, he will suffer greater hardship from a retroactive order than the mother will suffer if one is not ordered.

(g) The father is likely entitled to child support from the mother as the higher income earner for the period of December 2022 to date as a result of the shared parenting arrangement implement on November 28, 2022.

Order to go as follows:

[251] The Respondent father shall have sole decision making responsibility for Jhamiel. The father will attempt to obtain input on any major decisions from the mother, if possible, before making the major decision. He shall advise the Applicant mother immediately of any major decisions made affecting Jhamiel.

[252] The parents shall make the day do day decisions for Jhamiel while in his or her care.

[253] The Respondent father shall keep the mother advised at all times of the name and address of the school and daycare Jhamiel attends as well as the name and contact information for all doctors, dentists, and other service providers working with Jhamiel.

[254] The parties shall share all important information about Jhamiel in a timely fashion.

[255] The parties shall keep each other advised at all times of their current address, telephone number and email address.

[256] Each parent shall have the same right as the other to make inquiries and be given information from any third party professionals involved with Jhamiel, including doctors, dentists, other medical professionals, teachers, school personnel and daycare providers.

[257] The parties shall maintain the shared parenting regime currently in place pursuant to the order of Justice Jones dated November 28, 2022 until the end of August 2024. Commencing September 1, 2024, Jhamiel shall have his primary residence with the Respondent father.

[258] The Applicant mother shall have week to week parenting time on alternate weekends commencing September 6, 2024, from Friday to Sunday with pick up from school and drop off at the father’s home at 7:30 p.m. If the mother is working and cannot do pick up at school, the Friday pick up will permanently change to occur at the father’s home or at the location of the childcare arranged by the father at a time to be agreed upon between the parties.

[259] The mother shall have reasonable telephone/video contact with Jhamiel when not in her care.

[260] If the Monday following a weekend when Jhamiel is in the mother’s care is a holiday, the mother shall have Jhamiel in her care until Monday evening at 7:30 p.m. If the Friday before the mother has Jhamiel in her care is a holiday or non school day, her parenting time shall commence on Thursday after school or at the pick up time agreed upon between the parties to take place at the father’s home or the daycare provider.

[261] The parties shall share all school and statutory holidays equally. They shall attempt to agree on an equal division of the holidays, failing which brief oral submissions shall be made to the court on a date scheduled through the trial coordinator and an order will be made.

[262] The father shall be permitted to travel with Jhamiel outside of Canada for the purpose of a vacation without the mother’s prior written consent. He shall provide the mother with advance notice of his travel plans including a detailed itinerary with addresses and telephone numbers where Jhamiel can be reached.

[263] The mother shall obtain the father’s consent to travel with Jhamiel outside of Canada for the purpose of a vacation, which consent shall not be unreasonably withheld. She shall provide the father with advance notice of her travel plans including a detailed itinerary with addresses and telephone numbers where Jhamiel can be reached.

[264] The father shall be permitted to obtain government issued documents for Jhamiel including renewals without the mother’s consent or her signature on the application forms.

[265] Between May 1, 2022, and up to and including July 2022, the Respondent father should have paid the Applicant mother child support for Jhamiel in the amount of $283.00 per month based on the Respondent father’s 2022 income of $33,119.00. This amounts to $849.00 of which the father paid the mother $550.00 directly. Therefore, the mother shall receive a credit towards her child support obligation to the father in the amount of $299.00.

[266] For the purpose of determining the Applicant mother’s child support obligation, income shall be imputed to her in the amount of $47,000.00 effective January 1, 2022.

[267] Commencing August 1, 2022 and up to and including November 1, 2022, the Applicant mother shall pay the Respondent father child support for Jhamiel in the amount of $436.00 per month based on her annual imputed income of $47,000.00 and the Child Support Guidelines. She shall receive a credit towards the arrears for this period in the amount of $299.00. As the mother did not pay the father child support for this period, her arrears of child support for the period of August 1, 2022 to November 1, 2022 shall be fixed at $1455.00 ($436.00 x 4 months = $1744.00 - $299.00 = $1445.00) after applying the credit set out in paragraph 265 above.

[268] Commencing September 1, 2024, and on the first of each month thereafter, the Applicant mother shall pay the Respondent father child support for Jhamiel in the amount of $436.00 per month based on her imputed annual income of $47,000.00 and the Child Support Guidelines.

[269] The parties shall share the after tax cost of childcare, if any, incurred by the father to allow him to work in proportion to their incomes. The mother shall pay 58% of the after tax cost of childcare and the father shall pay 42%.

[270] Both parents shall be obliged to maintain any extended health benefits available to them for Jhamiel through their employment.

[271] If either party is seeking an order for costs of the trial, they shall serve on the other party and file with the Trial Coordinator written cost submissions not exceeding 5 pages not including any Offers to Settle or a Bill of Costs within 20 days of the date of this Judgment. The responding party shall have 20 days to serve on the requesting party and file with the Trial Coordinator a response not to exceed 5 pages not including any Offers to Settle or a Bill of Costs.

[272] Counsel for the Applicant shall prepare a draft order to be issued by the court which shall be approved as to form and content by the Respondent in accordance with the Family Law Rules

Released: June 10, 2024

Signed: Justice Melanie Sager