ONTARIO COURT OF JUSTICE

CITATION: M.D.L.C. v. D.S.C., 2024 ONCJ 550

DATE: 2024 10 8

COURT FILE No.: D31344/19

BETWEEN:

M.D.L.C.

Applicant

— AND —

D.S.C.

Respondent

Before Justice Melanie Sager

Heard on September 12, 13, 16 and 17, 2024

Reasons for Judgment released on October 8, 2024

Feven Glaizghi......................................................................................... counsel for the applicant

M. Keyshawn Anderson...................................................................... counsel for the respondent

SAGER, J.:

Introduction

[1] A four day trial proceeded in this matter to address the Respondent’s (father’s) Motion to Change the final orders of Justice Roslyn Zisman dated June 3, 2021 and Justice Debra Paulseth dated November 23, 2022.

[2] The order of Justice Zisman (final parenting order) was made in accordance with a consent executed by the parties resolving all claims made in the Application commenced by the Applicant (mother) on October 18, 2019 to address parenting issues and child support in relation to the parties’ daughter, X.S.J.C. (the child) born January 31, 2019.

[3] The final parenting order provides that the parties shall follow a joint decision-making regime when major decisions affecting the child must be made but if they cannot agree, the mother shall make the final decision. The order also provides that X.S.J.C. shall spend equal time with the parents on a week-to-week basis with exchanges taking place on Fridays at 9:00 a.m.

[4] The final parenting order also addresses some holiday parenting time, exchanges of the child, the way the parties shall communicate about the child, and child support payable by the father to the mother.

[5] The final order of Justice Paulseth dated November 23, 2022 (the enforcement order) orders any police service having jurisdiction in any area X.S.J.C. may be to enforce the final parenting order if there is any unlawful withholding of the child from the father by the mother. This order also prohibits the mother from removing the child from the Greater Toronto Area without the written consent of the father or court order.

Brief background of the parties and the previous litigation

[6] The mother was born in Colombia and is 27 years old. The father was born in Canada and is 46 years old. The parties commenced a relationship in Colombia in 2018 when the mother was 20 years old, and the father was 40 years old.

[7] The mother came to Canada when she was 8 months pregnant with the parties’ child. She lived with the father in the paternal grandfather’s home from December 2018 to August 2019.

[8] The father has no other children. The mother has a daughter from a previous relationship. A.J.G., who resides with the paternal family in Colombia. She will be 10 years of age this month.

[9] The father is a criminal lawyer practicing in Ontario although he voluntarily relinquished the right to practice law in Ontario from approximately April 2013 to June 2017 due to an incapacity to practice law stemming from heath reasons. The father’s evidence is that the misuse of drugs and alcohol led to his inability to practice law. He resumed practice between 2017 and 2019. Between November 2019 and May 2020, the father signed undertakings not to practice law. Between approximately November 2022 and March 2024, he was involved in proceedings before the Law Society of Ontario. He recently resumed practicing law in March 2024.

[10] The mother did not complete high school. She has held various jobs in Canada, including a bartender, office cleaner, a server for catering companies and being an extra in films. She recently earned non taxable income participating in drug testing trials for pharmaceutical companies.

[11] The mother says that the father was abusive throughout their brief relationship which resulted in her moving out of the home and into a shelter with X.S.J.C. in August 2019.

[12] The mother made complaints to the police in August of 2019 that resulted in the father being charged with 7 offenses including assault, uttering a threat to cause bodily harm, threatening to cause death to the mother’s mother in Colombia, criminal harassment of the mother and theft and mischief. It was alleged that these offenses took place between February 28, 2019 and August 23, 2019. The father was found not guilty of these charges on September 13, 2021. In his reasons, the trial judge was extremely critical of the mother’s evidence and found her to be an unreliable witness.

[13] The father denies that he was ever abusive to the mother and claims that she fabricated these allegations to obtain an advantage in the family litigation she commenced in 2019.

[14] On October 13, 2020, the mother obtained Refugee Status in Canada on the basis that she was a victim of domestic violence perpetrated by the father.

[15] On November 23, 2022, Justice Debra Paulseth heard an urgent motion brought by the father seeking an order instructing the appropriate police force to enforce his parenting time and an order prohibiting the mother from taking X.S.J.C. outside of the Greater Toronto Area. The original Notice of Motion indicated that the return date was November 28, 2022, but an email from the court to the parties on November 21, 2022, moved the motion date up to November 23, 2022. The mother did not serve or file responding materials on the motion or attend in court as she said she was not made aware of the change to the original return date in time to attend in court.

[16] Justice Paulseth made final orders on the motion based on the father’s affidavit evidence and ordered the mother to pay costs of the motion to be set off against the father’s child support payments.

[17] On August 21, 2023, the father commenced this Motion to Change and on October 10, 2023, the mother filed a Response to Motion to Change, asking for the father’s Motion to Change to be dismissed.

[18] On April 16, 2024, the mother served and filed an Amended Response to Motion to Change in which she asked the court to make orders allowing her to travel with X.S.J.C., hold her government issued identification, and for a parenting schedule for holidays not addressed in the final parenting order. The mother also asked the court to change the quantum of child support payable by the father to her for X.S.J.C. pursuant to the final parenting order of Justice Zisman.

The father’s position on the Motion to Change

[19] The father asks to vary the final parenting order to provide him with primary care of X.S.J.C. and sole decision-making responsibility for her. He also seeks to terminate his obligation to pay the mother child support and asks that the mother be ordered to pay him child support based on an imputed annual income $40,000.00 and the Child Support Guidelines (Guidelines).

[20] The father says that since the date of the final parenting order, the mother has abdicated a significant amount of her parenting time to the father which he says is a material change in circumstances requiring a variation of the final parenting order as it no longer meets X.S.J.C.’s best interests. He says the court order should reflect what is actually happening in reality.

[21] The father says that since the date of the final order the mother has not made a single decision for X.S.J.C. Not only has the father made all the decisions for X.S.J.C., he also initiates the discussion or the process to be undertaken before a decision can be made. He says he is proactive, and the mother is reactive.

[22] The father says the mother cannot be entrusted with decision making responsibility for X.S.J.C. as she is not child focused and has demonstrated unreasonable conduct including repeated violations of the final parenting order that should disentitle her to making decisions for X.S.J.C.

[23] With respect to parenting time, the father’s Motion to Change seeks an order that the mother have parenting time alternate weekends from Friday at 5:00 p.m. to Monday return to school. At trial his position changed on this issue, and he requests an order that the mother have parenting time alternate weeks from Wednesday after school until Monday morning return to school.

[24] The father says that the mother has not been honest about her income and either earns or can earn $40,000.00 a year and should be ordered to pay him child support based on that income and the Guidelines.

[25] With respect to child support and the mother’s request to impute income to the father at $100,000.00 annually, the father says that the mother’s false allegations of domestic violence is the reason for his being unable to practice law between 2019 and 2024. As a result, he is not earning an income commensurate with his education and more specifically, a law degree.

The mother’s position on the Motion to Change

[26] The mother’s position is that there has not been a material change in the circumstances of the child or either parent justifying a change to the decision-making regime or parenting schedule set out in the final parenting order.

[27] With respect to major decisions affecting X.S.J.C., the mother says the father is overstating the responsibilities he took on since the date of the final order. She says the parties made some decisions for their daughter together including enrolling her in Portuguese classes, considering whether to send her to private school and she cooperated to allow X.S.J.C. to travel with the father to Portugal on vacation in April 2023. She says for other decisions, the father did not follow the regime set out in the final parenting order and instead, made unilateral decisions for X.S.J.C.

[28] With respect to parenting time, the mother readily admits asking the father for help when she required childcare and did so at his urging that she rely on him rather than hiring a stranger to care for X.S.J.C. She says this should not constitute a material change in circumstances or be a reason for reducing her parenting time.

[29] For these reasons, the mother says there should be no change to the final parenting order with respect to decision making responsibility and the week-to-week parenting schedule.

[30] The mother agrees with the father that there has been a material change in circumstances that requires a variation to the final parenting order addressing a holiday parenting regime, travel with the child and who shall be responsible for the safe keeping of the child’s government issued documents. The lack of a court order on these issues has resulted in significant conflict and litigation between the parties.

[31] The mother says the father made choices that resulted in his being unable to practice law. She says that he is entirely responsible for the drastic reduction in his income for which she plays no part. The mother asks the court to impute the father’s annual income at $100,000.00 and fix his child support in accordance with the Guidelines.

Issues to be decided by the court

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

1. Has there been a material change in circumstances since the date of the final parenting order requiring a review of the order with respect to the shared parenting arrangement? If yes, what new order is in the child’s best interests?

2. Has there been a material change in circumstances since the date of the final parenting order requiring a review of the order with respect to decision making responsibility for the child? If yes, what new order is in the child’s best interests?

3. Has there been a material change in circumstances since the date of the final parenting order that necessitates a variation to the order with respect to the parent’s travel with the child for the purpose of a vacation and who should be responsible for the safe keeping of the child’s government issued documents? If yes, what new orders are in the child’s best interests?

4. Has there been a material change in circumstances since the date of the final parenting order that necessitates a variation of the order with respect to parenting time on statutory and school holidays? If yes, what new order is in the child’s best interests?

5. Has there been a material change in circumstances since the date of the enforcement order that necessitates a variation of the enforcement order? If yes, what new order is in the child’s best interests?

6. What if any change to the final child support order flows from the answers to the questions set out above?

The law

[33] The father’s Motion to Change is brought pursuant to section 29 of the Children’s Law Reform Act. Section 29 provides as follows:

Order varying an order

29. A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. R.S.O. 1990, c. C.12, s. 29.

[34] This court set out the test for obtaining a variation of a final parenting order in A.B. v. J.B., 2017 ONCJ 866, from paragraphs 28-31 as follows:

28. The test for a variation was enumerated by the Supreme Court of Canada in Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27. As stated by Justice Stevenson in Brown v. Lloyd, 2014 ONSC 300, although the test in Gordon was the result of a mobility case and variation under the Divorce Act, “the test has been held to be applicable to a variation under the Children's Law Reform Act.”

29. At paragraphs 15-17, Justice Stevenson sets out the test for variation resulting from the decision in Gordon v. Goertz, as follows:

[14] Both parties agree that the test for a variation is set out in the Supreme Court of Canada decision of Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, [1996] S.C.J. No. 52. The decision dealt with a mobility case and a variation under the Divorce Act, R.S.C. 1985, c. 3; however,

[15] As outlined in Gordon v. Goertz at paragraph 10, before the court can consider the merits of an application for variation, it must be satisfied that there has been a material change in circumstances of the child since the last order was made. The Court further stated at paragraphs 12 and 13:

12 What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson(1991), 1991 839 (BC SC), 35 R.F.L. (3d) 169 (B.C.S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.). Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. "What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place": J. G. McLeod, Child Custody Law and Practice (1992), at p. 11-5.

13 It follows that before entering on the merits of an application to vary a custody order

the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

[16] Jurisdiction to vary a custody and access order is dependent upon an explicit finding of a material change in circumstances since the previous order was made. If an applicant fails to meet this threshold requirement, the inquiry can go no further. See Persaud v. Garcia-Persaud, [2009] O.J. No. 5940, 2009 ONCA 782; and Litman v. Sherman (2008), 2008 ONCA 485, 52 R.F.L. (6th) 239 (Ont. C.A.).

[17] If the threshold requirement of a material change in circumstances is met, the judge must then enter into a consideration of the merits and make the order that best reflects the interests of the child (Gordon v. Goertz, para. 9). The judge on the variation application must consider the findings of fact made by the trial judge as well as the evidence of changed circumstances (Gordon v. Goertz, para. 17).

30. If the court finds that the threshold requirement of a material change in circumstances has been established, the court must then proceed to review the issues of custody and access afresh and make determinations based on what is in the child’s best interest having regard to all of the circumstances in section 24 of the Children’s Law Reform Act. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. The court should consider the matter afresh without defaulting to the existing arrangement. See Gordon v. Goertz, and Allen v. Allen, (1998) 1998 14873 (ON SC), 38 R.F.L (4^th) 96 (Ont. Gen. Div.).

31. In order to determine if the conditions for a variation exist, the change of circumstances must be material as opposed to trivial or insignificant: Hickey v. Hickey, 1999 691 (S.C.C.), [1999] 2 S.C.R. 518.

[35] A change alone is not enough to justify a variation of the final orders. The change must materially affect the child, the parents, or both.[^1] The threshold material change in circumstances test is aimed in part at ensuring that the parties do not resort to litigation whenever any change occurs, however minimal.[^2]

[36] The court should allow only a limited look at evidence predating the order to understand how it was made in order to determine if a material change in circumstances has been established.[^3]

[37] Once the court determines that there has been a material change in circumstances, the court should then look at all the evidence, including the evidence predating the order from which change is being sought.[^4]

[38] When a parent agreed to additional weekly overnight parenting time, this did not constitute a material change in circumstances.[^5]

[39] Worsening conflict can constitute a material change in circumstances affecting the best interests of the child.[^6] Repeated or protracted breaches of a final order may also constitute a material change in circumstances justifying a change to a final order. But those breaches must be material and affect the child’s best interests.[^7]

Credibility of the parties

[40] The mother gave her evidence is a clear and forthright manner. She did not engage in hyperbole or dramatics. She restricted her criticism of the father to issues between the parents and did not engage in unsubstantiated or exaggerated criticisms of the father’s parenting of X.S.J.C.

[41] The mother was candid about her breaches of the final parenting order and accepted responsibility. She did not downplay or try to minimize what she did. She apologizes and asks the court for forgiveness. The insight she demonstrated into her behaviour seemed sincere.

[42] When giving evidence, the father’s anger and mistrust of the mother was palpable. He said that he is the victim as the mother has caused him much pain and suffering due to her false claims of domestic violence. Because of her false allegations, he said he could not practice law and lost his livelihood.

[43] The father took every opportunity he had when giving evidence to criticize the mother’s parenting and character and state and re-state his concerns. He sometimes went off on a tangent about the mother’s failings when doing so was entirely unrelated to the question he was asked. When the mother’s lawyer misstated a date during cross examination, the father told her to “do your homework counsel”.

[44] The father’s refusal to admit obvious facts and his unwillingness to accept any wrongdoing at all, damaged his credibility. For example, he refused to acknowledge that the mother has no family or support in Toronto who she can turn to for help with childcare. He would not agree that the mother faces obstacles in Canada as English is not her first language, and she cannot easily maneuver through the systems here. He blamed the mother for X.S.J.C. having to change schools in the first month of her first year of school despite his decision to raise the issuing of enrolling her in school on September 1, 2023, four days before the school year started (this will be covered in detail later in this judgment). When the mother did not respond to his message immediately, he unilaterally enrolled her in school without the mother’s involvement.

[45] While the mother answered questions honestly and admitted her shortcomings and poor choices. The father did not. He showed no insight or self-reflection into how he interacts with the mother or how his choices have contributed to the conflict with her. He is very sure of himself and confident that he is the stronger, more responsible parent who takes child rearing very seriously whereas the mother is irresponsible and cannot be entrusted with the child’s health card let alone her physical care 50% of the time.

[46] The father accepted no responsibility for the parties’ conflict. He did not acknowledge his breaches of the final parenting order. He showed no remorse for denying X.S.J.C. the opportunity to travel with her mother or to meet her older sister which will be explained further in this Judgment.

[47] The father also felt it relevant and helpful to the court to question the mother on whether she has had plastic surgery and ask her about a picture that she posted on Tic Tok that the court can only assume the father thought was racy or inappropriate. This line of questioning tells the court more about the father then it does about the mother. We are well past the days of trying to embarrass or shame a parent about lifestyle choices they make that have no impact at all on their ability to parent a child.

[48] The analysis of the relevant evidence set out below is done in the context of the above credibility findings.

Issue #1 – Has there been a material change in circumstances since the date of the final parenting order requiring a review of the order with respect to the shared parenting arrangement? If yes, what new order is in the child’s best interests?

Analysis of the relevant evidence

a. X.S.J.C.

[49] The father acknowledges that X.S.J.C. loves her mother and that they share a close relationship. He takes no issue with her fundamental physical care of X.S.J.C. The father knows X.S.J.C. enjoys her time with her mother and the mother-daughter activities they share together.

[50] The father describes X.S.J.C. as a wonderful 5 year old girl who is very smart and speaks three languages. He says she loves going to the park, playing soccer, and helping in the kitchen. He says they go to Church and pray together. He says she is happy child with a wonderful spirit.

[51] The mother describes X.S.J.C. as a very smart, happy child who loves her parents. She says she always asks about her sister who lives in Colombia, as she is happy to have a sister. The mother says X.S.J.C. is very obedient and energetic. She says she always wants to dance for her and go to the park. The mother says she always picks X.S.J.C. up from school and cooks healthy food for her. She says they watch movies and Salsa dance together. She says X.S.J.C. never skips her phone call with her sister in Colombia.

[52] X.S.J.C.’s school principal gave evidence at the trial. She describes X.S.J.C. in glowing terms. She said she is a happy child who has friends and has adapted well to school. The principal said X.S.J.C. enjoys her time in class and at recess. She says she displays appropriate emotional regulation. The principal reported that X.S.J.C. comes to school prepared to learn and engage in activities, that she is dressed properly and attends with appropriate lunches and snacks.

b. Father’s Claim that X.S.J.C. has been in his care 70% of the time

[53] The father says that that since the date of the final parenting order, the mother has asked him to care for X.S.J.C. or left her in his care during her court ordered parenting time so often that X.S.J.C. is in his care approximately 70% of the time. The father says on many occasions the mother does not pick X.S.J.C. up at the end of his parenting time and when the father contacts her, she asks him to keep X.S.J.C. in his care. He says he keeps meticulous notes of when X.S.J.C. is in each parent’s care.

[54] The father says that it is in X.S.J.C.’s best interest that he be her primary caregiver as the mother’s life is chaotic and she has failed to provide X.S.J.C. with the stability and routine she requires. He says that when he cares for X.S.J.C. during the mother’s parenting time, it is not arranged in advance in an orderly fashion but rather last minute and with little to no notice to him. He says the mother cannot “handle the parenting time she was allotted”.

[55] When X.S.J.C. is in the mother’s care, the father says she is late getting her to school and sometimes she does not go to school at all. The father does not believe that the mother is responsible, or child focused enough to care for X.S.J.C. 50% of the time.

[56] The father says that the change to the final parenting order he is seeking is necessary to reflect the reality on the ground in terms of the parenting schedule.

[57] The father provides tables and pie charts for January 1, 2022 to June 2023 and June 2024 to September 2024 setting out when he says X.S.J.C. was with him and when she was in the care of the mother. He says X.S.J.C. was in the mother’s care from January 1, 2022 until June 2023, only 23% of the time and in his care 65% of the time. He says the other 12% represents days X.S.J.C. was exchanged between the parents. He says that between June and September 2024, X.S.J.C. was in his care for 31% of the mother’s time[^8].

[58] The father says the mother’s cavalier attitude towards her parenting time is disruptive to X.S.J.C., who does not enjoy the structure and stability in the mother’s home X.S.J.C. requires and which he provides when she is in his care. He says the child thrives and feels secure in his care.

[59] The father says that the mother’s abdication of her parenting time is not in X.S.J.C.’s best interests and as such, amounts to a material change in circumstances.

[60] The mother acknowledges asking the father to care for X.S.J.C. during her scheduled parenting time but not as frequently as he claims. She says that she has no support in Canada as her family resides in Colombia and Chile. She says, and the father acknowledges, that when she hired a babysitter, the father told her that it was not necessary as he will care for X.S.J.C. when she cannot as he said it is better than leaving her with a stranger. As a result, she says when she needed childcare to allow her to work, she asked the father for help, and he agreed. She says she never thought that he would use this against her to vary the final parenting order.

[61] The mother did not give evidence that specifically addresses each line or column of the father’s tables and pie charts upon which he relies to claim that he has cared for X.S.J.C. 70% of the time between January 2022 and June 2023. She points out that some of the months in which she had little to no parenting time were when the father was on vacation with X.S.J.C. and when she went on vacation on her own because the father would not agree to X.S.J.C. travelling with her. For example, his calculations between January 1, 2022, and June 2023 include a 21-day period when X.S.J.C. travelled to Portugal with the father in April 2023 and a lengthy period in 2022 when she returned to South America to visit family and friends.

[62] The mother’s evidence is that between May 20, 2022 and July 11, 2022, she travelled to South America to visit family and specifically her daughter from another relationship who she had not seen in years. She explained that she could not leave Canada until her immigration status allowed it. Once it did, she planned a lengthy trip to Ecuador where she met family and friends, including her other daughter. She wanted very much to bring X.S.J.C. with her, but the father would not agree so she went on her own. During this period, X.S.J.C. was in the care of the father and this is reflected in his charts.

[63] The mother specifically disputes the father’s calculations for May and June 2023 when he claimed X.S.J.C. was in her care for only 2 days. She said this cannot be correct and the father is clearly mistaken as she recalls X.S.J.C. being in her care on her birthday in 2023 and the father cooperating to change weekends to allow this to happen.

[64] The mother says she asked the father for help with childcare between June and September 2024 when she enrolled in clinical drug trials for which she says she was paid thousands of dollars she required to pay lawyers. She said she was required to stay on site after having been given drugs intravenously and could not physically leave even if she wanted to.

[65] The mother’s evidence is that she has dreams to better herself. She wants to go to school and have a job that allows her to provide for her daughter. She says she has no family here to help her. She said that she asked the father to care for X.S.J.C. to allow her to work and better herself “for my daughters” and that this should not be something that results in her losing time with her daughter. The mother said that the father is trying to control her and that all she wants is to know that if she asks for help, it will not be used against her to reduce her time with X.S.J.C.

[66] The mother disagrees with the father’s characterization of her parenting of X.S.J.C. or that she does not provide her with a stable home life. She says that she has a close and loving relationship with her daughter and that she does everything for her and that requires her to take on various types of jobs to provide for them financially. She admits that due to the language barrier she faces and not understanding the system in Canada, she sometimes asks the father for help and even relies on her daughter to help her navigate school issues. She says she is doing the best she can, given her limited education and command of the English language, and lack of familial supports.

[67] The court finds the father’s evidence on this issue to be misleading and unreliable.

[68] The father admits that he told the mother she did not have to employ a babysitter as he was willing to care for X.S.J.C. when she could not. He then kept “meticulous” notes detailing when he says X.S.J.C. was in each parent’s care and relies on them to bring a Motion to Change to reduce the amount of time X.S.J.C. is in the mother’s care. The court finds the father’s conduct in this instance to be manipulative.

[69] Despite having kept meticulous notes of when X.S.J.C. is in each parent’s care, the father did not attach his notes to his charts and include them as evidence at the trial or provide them to the mother.

[70] The chart setting out the sharing of time between January 1, 2022 and June 2023 has mathematical errors as the calculations for several months do not total the number of days in the month[^9].

[71] The court was not provided with any evidence of the time X.S.J.C. was in each parent’s care between July 2023 and May 2024. The father gave evidence that the chart he provided for June to September 2024, actually has errors on it but as they are in the mother’s favour, he says the court can still rely on it.

[72] The father’s evidence of the time X.S.J.C. has been in his care since January 1, 2022, does not exclude the time he agreed to provide childcare for the mother or when one or both parents were on vacation with or without X.S.J.C.

[73] In his calculations, the father treated days the child was exchanged between the parties as a shared day. In other words, neither party received credit for any day the child moved between their homes. The final parenting order provides a return time of 9:00 a.m. If X.S.J.C. was exchanged at 9:00 a.m., this would most certainly not be a shared day as the father claims. He provided no evidence of when the parties exchanged X.S.J.C. to support his calculation. This contributes to the lack of reliability of the calculations.

[74] The court finds the father’s calculations claiming to demonstrate when X.S.J.C. was in the care of each parent since January 2022 unreliable and of limited use to the court.

c. X.S.J.C.’s attendance at school

[75] The father says that even after demanding that X.S.J.C.’s school be changed to one closer to her home, the mother often brings X.S.J.C. late to school. The child’s school records show her being late on 31 days she was in the mother’s care between September 2023 and June 2024. The father says she also missed many full days of school while in the mother’s care. Her school records show that she missed 23.5 days during the 2023-2024 school year.

[76] The father says reducing the amount of time X.S.J.C. is in her mother’s care will reduce the number of X.S.J.C.’s lates and absences from school.

[77] The mother admits that X.S.J.C. has been late for school on occasion when in her care. She must take public transit to get to X.S.J.C.’s school and sometimes due to transit delays or inclement weather she is late. She says she is making a concerted effort to be on time and believes that there has been an improvement.

[78] The mother says X.S.J.C. has missed school due to illness while in both her and the father’s care.

[79] I find the evidence of X.S.J.C. being late for school falls far short of demonstrating a material change in circumstances requiring a review of the parenting order.

d. The father’s claims of mother’s lack of parenting skills

[80] The father says the mother has demonstrated her lack of parenting skills in the numerous text and email messages she has sent the father complaining about her inability to care for the child and work and make a living. She has sent some messages to the father in which she claims to want to leave X.S.J.C. with him permanently and instructs him to pick her up from her home immediately or she will “throw her in the street” because she does not want her in her home.

[81] The mother did not give evidence on the content of the text messages the father provided.

[82] The mother loves X.S.J.C. and wants what is best for her. There is no dispute from the father that X.S.J.C. shares a close and loving relationship with her mother or that she provides adequate day to day care of X.S.J.C.

[83] There is no reliable evidence to suggest either parent is unable to meet the basic day to day needs of X.S.J.C. By all accounts, she is a thriving 5 year old.

Misrepresenting the evidence

[84] The father’s propensity to provide evidence that misrepresents the facts is concerning for the court and impacts his credibility. The following are some additional examples of the father’s evidence that the court finds misleading.

a. The father’s lack of financial disclosure

[85] The final parenting order requires the father to pay the mother child support of $247.00 per month based on an imputed annual income of $29,000.00 and the Guidelines. As is required in every court order for child support, the final parenting order provides that in accordance with subsection 25(1) of the Guidelines, the parties shall exchange updated income disclosure, as defined by section 21 of the Guidelines, on an annual basis by June 30^th.

[86] The father is a lawyer. He has been represented by counsel throughout this litigation. The court has an enhanced expectation of him to comply with his obligation to provide complete financial disclosure in this matter. The mother’s counsel repeatedly asked for financial disclosure from him in accordance with section 21 of the Guidelines, yet he refused to provide the disclosure even when he was served with a Request to Admit. When asked why he failed to provide the information requested by the mother in her Request to Admit, the father repeatedly said that he provided the mother with what the court ordered. Finally, when asked if he was hiding his income and trying to mislead the court, he said “I provided what the court ordered, not what you asked for.”

[87] Subsection 21(1) of the Guidelines provides that “A parent or spouse who is applying for an order for the support of a child and whose income information is necessary to determine the amount of the order must include with the application,

(c) where the parent or spouse is self-employed, for the three most recent taxation years,

(i) the financial statements of the parent’s or spouse’s business or professional practice, other than a partnership, and

(ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the parent or spouse does not deal at arm’s length;

[88] Subsection 21(2) of the Guidelines provides that any parent or spouse responding to a claim for child support must within 30 days after being served with the application, provide the information to the other party and the court referred to in subsection 21(1).

[89] The mother served a Request to Admit on the father, dated April 30, 2024. She requested standard and reasonable disclosure for a self-employed person[^10] responding to a claim for child support, including bank statements and credit card statements, none of which were provided by the father. He was also asked for a list of jobs he has applied for, which was also not provided to the mother.

[90] The father asks the court to severely punish the mother for not complying with the final parenting order. He says her behaviour is so egregious that it amounts to a material change in circumstances, or at least contributes to it. Yet he failed to comply with paragraph 13 of the final parenting order which requires him to provide annual financial disclosure, as defined by section 21 of the Guidelines, and pursuant to subparagraph 25(1) of the Guidelines.

[91] The father did not see the irony in his asking the court to vary the final parenting order in part due to the mother’s wilful breaches of the that order when he too has violated provisions of that order.

b. The father blames the mother for his loss of livelihood due to his being unable to practice law

[92] The father says the false allegations made by the mother to the police in 2019 led to his being charged and incarcerated. He says he was vindicated at trial as the trial judge rejected the mother’s evidence and found that she was not a credible witness. He says as result of the false charges, he was investigated by the Law Society of Ontario (LSO) which led to negative media coverage and his having to forfeit his license to practice law[^11]. He said the LSO investigation “dragged on”. He said before this all happened, he had a healthy criminal law practice and had acted as defense counsel in several jury trials.

[93] The father’s evidence on this issue is also misleading. The father has had dealings with the Law Society as far back as 2015. The father admits to having abused drugs and alcohol in the past. This led to criminal charges of harassment of a former partner to which he pled guilty. The father did not practice law between 2013 and 2017. In 2017, after undergoing medical treatment and providing a written undertaking to continue treatment, the father’s license to practice law was reinstated.

[94] The father signed a “capacity related undertaking” not to practice law in December 2019 and May 2020. In early 2022, the father began proceedings at the LSO to be released from his undertaking so he can resume practicing law. The LSO opposed the release and requested a capacity assessment. Eventually the LSO retained an addictions medicine physician to complete a capacity assessment of the father. The physician recommended the father be required to abstain from alcohol consumption for 5 years as a term of having his license to practice law reinstated.

[95] The father’s evidence is that the assessment was absurd, and he refused to agree to the recommendation that he abstain from alcohol entirely as he had been employing a harm reduction approach with oversight by his long term treating physician. The father did not practice law until March 2024, when he agreed to complete abstinence from alcohol for a period of three years. He said he only agreed to the recommendations to have his license to practice law reinstated.

[96] The father blames the mother for his being unable to practice law after her complaints to the police in 2019 despite his having a regulatory history with the LSO since at least 2015, and which was due in part to his misuse of alcohol and drugs. His misplaced blame on the mother for his issues with the LSO and the impact on his income shows a lack of insight on his part.

[97] Given the father’s evidence, it appears that the negative impact to his livelihood and ability to practice law is due to the choices he made and not because of the mother’s allegations of domestic violence.

Conclusion regarding whether there has been a material change in circumstances since the date of the final parenting order that necessitates a review of the shared parenting arrangement

[98] Both parties are far from perfect and have at times engaged in troubling behaviour. They have both had incidents of poor judgment where they lost sight of what is best for their daughter.

[99] The father is extremely intense. He has very high expectations of both himself and the mother when it comes to parenting X.S.J.C. He expects the mother to parent X.S.J.C. like he does. If she does not agree with him or does not do things like him, in his opinion she is an inadequate parent. The court observed him to be strong willed and stubborn. Given the differences in the parties’ age, education and life experiences, and the father’s domineering personality, it is understandable that the mother has had a difficult time coping with the father’s conduct and had moments where her interactions with the father were immature and reactive.

[100] The reason one must demonstrate a material change in circumstances before a final order will be varied is to avoid exactly what has occurred in this case with respect to parenting time. A final order should not be subject to change unless something so serious has occurred that the final order no longer meets the needs of the child. That has not happened in this case. The evidence upon which the father relies to demonstrate a material change in circumstances has occurred, for the most part, has been rejected by the court. Whether the evidence is considered by each single event or in totality, it does not amount to a material change in circumstances.

[101] Both parents have their strengths and weaknesses. As X.S.J.C. is a very happy, healthy, social, and smart child, it appears the parties’ strengths and weaknesses are being balanced out and she is enjoying and benefitting from the best of both parents. There is no evidence that the shared parenting regime is no longer meeting X.S.J.C.’s needs and not in her best interest.

[102] As there has not been a material change in circumstances with respect to the shared parenting regime, the father’s claim for an order that X.S.J.C. be placed in his primary care and that the mother have parenting time alternate weeks from Wednesday after school to Monday return to school is dismissed.

Issue #2 – Has there been a material change in circumstances since the date of the final parenting order requiring a review of the order with respect to decision making responsibility? If yes, what new order is in the child’s best interests.

The father’s position

[103] The father says that since the date of the final parenting order, he has made all major decisions for the child or initiated the decision-making regime as the mother has not been proactive in this regard and because she either did not respond to his enquiries or showed little interest. He says he has taken X.S.J.C. to most of her doctor’s appointments, sought out medical attention when she needed it, enrolled her in school, registered her in Portuguese classes and soccer and has ensured she attends all appointments and activities scheduled for her.

[104] Overall, the father says that mother’s conduct demonstrates her inability to meet X.S.J.C.’s needs as contemplated by the final parenting order in a fundamental way and is a material change in circumstances. He says the material change in circumstances necessitates a change to the order granting the mother final decision-making responsibility for X.S.J.C.

The mother’s position

[105] The mother’s evidence is that she did not even realize that the final court order gave her the authority to make final decisions for X.S.J.C. if the parties could not agree.

[106] The mother says she engaged with the father when he raised the idea of X.S.J.C. attending Portuguese classes when she was 3 years old and agreed to her being enrolled. She also discussed X.S.J.C. attending Montessori once she is school age with the father. She references her cooperation and execution of a consent for X.S.J.C. to travel to Portugal with the father as evidence of her involvement in major decisions impacting X.S.J.C. She disagrees with the father’s claims that he took sole responsibility for enrolling X.S.J.C. in school and describes a different version of events that led to her attending school for junior kindergarten.

[107] The mother acknowledges that the father often dealt with health issues and took X.S.J.C. to the doctor but says that he refused to provide her with X.S.J.C.’s health card when she requested it. With respect to extracurricular activities, the mother said she would like to enrol X.S.J.C. in swimming and ballet, but has not yet done so.

[108] The mother denies that there has been a material change in circumstances requiring a change to the final parenting order regarding decision making responsibility.

Analysis of the relevant evidence

a. The mother’s breaches of the terms of the final parenting order

[109] The father’s evidence is that the mother has behaved contemptuously towards this court. He says she has repeatedly and wilfully disregarded the final parenting order by denying him his parenting time even when doing so was clearly contrary to X.S.J.C.’s best interests. He says she is not child focused and has used the child to try to extort what she wants from the father. He describes her as a “serial extortionist”.

[110] The father says each time the mother denied him his parenting time she did so knowing it was in violation of the final parenting order because she does what she wants, when she wants and has no regard for the court order. He relies on text messages and emails from the mother in which she makes it clear she does not care what the court order says.

[111] The mother’s decision to withhold X.S.J.C. from the father between October 31^st and November 23, 2022, because the father would not give her X.S.J.C.’s passport, resulted in the father’s enforcement motion before Justice Paulseth. The mother acknowledges she was served with the initial motion materials but was not aware that the original return dated was moved up from November 28, 2022, to November 23, 2022, until it was too late. She said she makes no excuses for not attending in court on the motion but says she did not see the email sent to her from the court in time to be at the earlier date.

[112] The mother does not deny that she withheld X.S.J.C. from the father because he refused to give her X.S.J.C.’s passport and allow her to travel with the mother. The mother said she had tried for years to get the father’s cooperation “the nice way” and failed. She said she became upset and did what she did because she is “not perfect”.

[113] The father says the mother also denied him parenting time over Christmas and Father’s Day in 2023 and X.S.J.C.’s birthday in 2024. Her conduct has led to police involvement on three occasions including Father’s Day and Christmas 2023 and March 2024.

[114] With respect to Christmas 2023, the father tried to negotiate with the mother for 2 days before calling the police to enforce his parenting time. The mother refused to follow the court order advising the father that she does not celebrate Christmas. She said “I don’t want to impose religious things to my daughter. I thought I was doing the right thing and wanted her to stay with me for Christmas. I’m sorry I didn’t do the right thing.”

[115] On Father’s Day, 2023, the father attempted to arrange for X.S.J.C. to be in his care as of Saturday evening at 7 p.m. as provided for in the final parenting order. This did not happen. In the written communication between the parties about Father’s Day in 2023, the mother asks the father to show her in the court order where it says that X.S.J.C. is to be in his care the night before at 7:00 p.m. In her evidence at trial, she said she did not understand the final court order at the time which caused the confusion.

[116] The father says that the mother’s willingness to withhold X.S.J.C. from him is selfish and demonstrates that she puts her needs before that of the child. She knew that what she was doing was hurting the child, as evidenced by text messages she sent the father stating the child is upset and missing him but withheld the child anyway.

[117] The father also points to the mother’s wilful breach of a January 15, 2024, consent order, that requires her to take X.S.J.C. to school every day which he says she immediately breached by bringing her late on three consecutive days following the date of the order.[^12]

[118] The father says that the police had to be called on March 25, 2024, because the mother failed to bring X.S.J.C. to her lobby as required by the order and was insisting that the father attend at her apartment door to pick up X.S.J.C.

[119] On X.S.J.C.’s birthday in 2024, the father emailed the mother the day before to arrange to see X.S.J.C. The final parenting order gives the parent who does not have X.S.J.C. in their care on her birthday, parenting time from 1:00 p.m. to 5:00 p.m. The father acknowledges the oversight by the parties and counsel to address the parenting time on her birthday once X.S.J.C. is in school. In his email to the mother, the father suggests he have parenting time on X.S.J.C.’s birthday from 3:00 p.m. to 5:00 p.m. He asked her to notify the school of the arrangements. The father advised the school secretary and principal of his intention to pick X.S.J.C. up on her birthday given it was the mother’s parenting time.

[120] The father says he received a call from the school at 2:20 p.m. on X.S.J.C.’s birthday advising that the mother was at the school to pick up X.S.J.C. He arrived at the school and said that the mother “caused such a dramatic and distressing event that the school’s secretary began to cry. The principal was also very concerned as to what she was witnessing that she called the school’s trustee for guidance.” The father says he chose not to involve the police to avoid upsetting X.S.J.C. on her birthday.

[121] The father acknowledged in cross examination that the mother had a birthday party planned for X.S.J.C. after school but that the conflict which occurred that day was “entirely avoidable” as he emailed the mother twice to arrange to see X.S.J.C. on her birthday.

[122] The mother’s evidence is that she always plans a large birthday celebration for X.S.J.C. and the father knows this. He knew she had a birthday party planned for X.S.J.C. on January 30, 2024, and his plans to pick her up from school and have her in his care until 5:00 p.m. would interfere with it.

[123] The father’s evidence of what occurred at the school on X.S.J.C.’s birthday demonstrates his refusal to accept any responsibility for the conflict that occurred that day. He ignores the fact that he waited until the day before X.S.J.C.’s birthday to email the mother to try and arrange parenting time given the court order did not address this issue once she starts school. He glosses over the fact that the mother had a birthday party planned for X.S.J.C. after school, which he was aware of, and that his having parenting time with X.S.J.C. from 3:00 p.m. to 5:00 p.m. would interfere with these plans.

[124] The court is also alarmed with the father’s report of what occurred at the school that day given that his evidence is quite an exaggeration of what occurred according to the principal’s evidence. He attempted to persuade the court that the mother was angry and out of control causing “such a dramatic and distressing event that the school’s secretary began to cry.” The principal’s recollection of what occurred was quite different. She did not confirm the father’s claims that the mother raised her voice, threatened to call the police or that the secretary cried. She said had the secretary cried, she would have known. The principal did not give evidence that she called the school trustee to obtain advice as the father claims.

[125] The principal’s evidence of what occurred on X.S.J.C.’s birthday was so drastically different from what the father described that it raised serious concerns for the court about the veracity of the father’s evidence on other issues.

[126] The mother admits to taking matters into her own hands in the past and not complying with the terms of the final parenting order. She did this out of anger because the father reneged on his consent to allow X.S.J.C. to travel with her to Spain in the summer of 2023. The mother says that she has never been given X.S.J.C.’s passport and as a result the child has never travelled with the mother to meet her older sister who lives in Colombia. The mother says that all the conflict between the parents stems from the father’s refusal to give her X.S.J.C.’s passport. She says she has learned her lesson and will comply with court orders following the trial. She said she does not want to have to endure more litigation and pay for lawyers.

[127] The mother’s disregard of the court order in November 2022 and at Christmas and Father’s Day in 2023 are examples of her failure to put the needs of her child before her own. The father’s refusal to allow X.S.J.C. to travel with the mother in July 2023 was selfish and demonstrates his inability to put his daughter’s needs before his own. His refusal to facilitate travel for his daughter to meet her sister is incomprehensible.

[128] There is no doubt that the mother has at times acted impetuously in response to something the father did or said that she did not like. At times when she feels provoked by the father she has behaved immaturely and made decisions that bring her judgment into question. On occasion she has failed to put the needs of X.S.J.C. before her own. She has allowed her anger and frustration with the father to cloud her judgment and she made the very poor decision to disobey a court order one more than one occasion.

[129] It is not only the mother who has violated the final parenting order, the father has as well. The difference between the parties is that the mother acknowledges and takes some responsibility for her choices and mistakes. She says she has learned from her mistakes of withholding the child from the father which has cost her dearly in terms of legal fees and having to respond to this court proceeding. She says this will never happen again.

[130] The court observed the father’s controlling and assertive personality. The father is provocative with the mother and has been manipulative at times to get what he needs. His personality combined with his inability to show insight into his behaviour and his belief that he is right, and the mother is wrong has contributed significantly to the conflict between the parties. While it is unacceptable for the mother to breach the final parenting order, the court cannot ignore the father’s difficult and manipulative behaviour with the mother and how that provoked her.

[131] Despite the father’s conduct instigating conflict between the parties, he takes no responsibility. He shows no insight into or honest scrutiny of his conduct. His lack of introspection of his choices and behaviour together with his misrepresentation of the important evidence hurts his credibility.

[132] The mother’s breaches of the final parenting order considered alone, do not constitute a material change in circumstances warranting a review of the final decision-making responsibility order.

b. Enrolling X.S.J.C. in school in September 2023

[133] The father says the mother’s failure to enrol X.S.J.C. in school for the 2023-2024 school year supports his claim that she should not have decision making responsibility for X.S.J.C. He says when the mother failed to enrol X.S.J.C. in school, he took the initiative to research schools, locate the best one and enrol her. He said the mother ignored his emails about enrolling X.S.J.C. in school and in fact did not want her to go to school, so he took it upon himself to do so. After enrolling her in school, the mother refused to take her to school and insisted she be moved to a school closer to her home, which the father cooperated to allow. Even after agreeing to change her school, the father says the mother took no steps to enrol X.S.J.C. in the new school, so he had to do it.

[134] While the father attended X.S.J.C.’s parent teacher meetings, the mother did not. The father takes X.S.J.C.’s education very seriously, but he cannot say the same for the mother and this concerns him.

[135] The father says the mother’s desire not to send X.S.J.C. to school for junior kindergarten is evidence of the lack of importance she places on education.

[136] The mother’s evidence regarding X.S.J.C.’s enrollment and attendance at school is very different from that of the father. She says that when X.S.J.C. was young, the parties discussed her attending private school. She relies on an email exchange between the parties on January 2, 2023, in which the father tells her they have 9 months to save money for X.S.J.C. to attend private school.

[137] As the mother was prohibited from having direct communication with the father due to outstanding criminal charges against her involving the father[^13], in July 2023, they communicated through the paternal grandfather. On July 17, 2023, the paternal grandfather sent the mother a message with a screen shot of the cost of Montessori and advised that she will share the cost with the father equally. The mother told the father through the paternal grandfather in writing that she could not afford the cost of $17,700.00 a year as she is not working.

[138] The mother says that the father told her that it is not mandatory for X.S.J.C. to attend junior kindergarten and that they would wait a year and decide where she would attend school. The mother says the parties had no discussions about X.S.J.C. attending school between July 17, 2023 and September 1, 2023, when the father emailed the mother advising that he was looking into schools for X.S.J.C. She says it is inaccurate for the father to claim she did not want X.S.J.C. to attend junior kindergarten.

[139] The mother’s evidence is that she asked the paternal grandfather several times in writing for the name of the school the father enrolled X.S.J.C. in but did not receive that information until September 7, 2023. In her communication she told the paternal grandfather that it was not right for the father to make this unilateral decision without her input.

[140] The mother was very upset with the father. She said she thought that X.S.J.C. was not going to attend school for junior kindergarten as it was not mandatory. She said she ultimately did not agree to the school that the father enrolled X.S.J.C. in as it was 40 minutes from her home by public transit and only a few minutes walk from the father’s home. With the assistance of her lawyer, she proposed that X.S.J.C. attend a Catholic school that is more of an equidistance from their respective homes. X.S.J.C. was ultimately enrolled in this school.

[141] The mother says that X.S.J.C.’s education is of course very important to her and the communication she had with the father and paternal grandfather demonstrates this. She says she does not know X.S.J.C.’s teacher’s name as it is hard for her to pronounce.

[142] The school principal said she has had interactions with both parents and disclosed no concerns about either of them. While she could recall the father’s name, she said she could not remember mother’s first or last name but would recognize her.

[143] The father’s evidence of the events preceding X.S.J.C.’s enrollment in school is an example of his willingness to exaggerate or misstate the facts. His evidence is that “In August 2023, I contacted the [sic] [mother] to discuss enrolling [the child] in school commencing September 2023.” The evidence does not support this statement. The parties discussed enrolling X.S.J.C. in school in January 2023 and July 2023, not August 2023.

[144] The father also says, “At the beginning of September 2023, I again encouraged the mother to join me in looking at suitable schools for [the child], yet the mother ignored my suggestions.” He says, “I emailed her on September 1, 2023 asking her to join me in attending school meetings in search of a school for [the child] but [the mother] did not respond.” He then says, “Given the mother’s ongoing refusal to discuss enrolling [the child] into school for the fall 2023 semester, I was compelled to act and enrolled the child in St. Sebastian Catholic School.”

[145] The father’s claim that he had to enrol X.S.J.C. in school due to the mother’s “ongoing refusal” to discuss the issue with him is a gross distortion of what occurred. He emailed the mother on a Friday, 4 days before the start of the school year. This can hardly be categorized as an “ongoing refusal” to engage in discussions.

[146] The mother’s evidence that the parties spoke and agreed that X.S.J.C. would not attend junior kindergarten as it is not mandatory is supported by the email the father sent the mother on September 1, 2023, in which he writes, “I would like [the child] to start school this year. While Kindergarten is not mandatory I think it would be good for her.”

[147] The father’s evidence on this issue is disingenuous. His allegation that the mother “refused” to discuss enrolling X.S.J.C. in school is untrue. The father’s communication with the mother was on Friday September 1, 2023, four days before the start of school on Tuesday September 5, 2023. It is unreasonable for the father to raise the issue with the mother for the first time since July 2023, four days before the start of school and then chastise her for not responding immediately. It is further unreasonable for the father to argue based on this evidence that the mother does not take the child’s education seriously.

[148] The final parenting order provides a regime for the parties to follow when a major decision impacting X.S.J.C. must be made. According to the order, it is a process that will allow for 10 days “during which the parties shall make their best efforts to agree on a decision that serves [the child]’s best interest.” The father did not follow the process set out in the final parenting order when he enrolled X.S.J.C. in school. This is another example of the father’s failure to comply with the final parenting order.

c. X.S.J.C.’s health

[149] With respect to X.S.J.C.’s health, the father says that he has taken responsibility for this as the mother does not know what to do and calls him for help when X.S.J.C. is unwell. He has taken X.S.J.C. to most of her doctors’ appointments.

[150] The father says that the mother has failed to take X.S.J.C. to the doctor when she is ill. This resulted in the father having to seek medical attention for X.S.J.C. on at least one occasion four days after she first showed signs of illness.

[151] The mother says that she has attended to X.S.J.C.’s medical needs as required. This sometimes includes employing “Colombian traditional home remedies”. She says, when necessary, she takes X.S.J.C. to the doctor. On other occasions, the mother acknowledges that she has asked the father and his family for help when X.S.J.C. is ill.

[152] The mother says she has asked the father for X.S.J.C.’s health card, but he refuses to give it to her. The father says when she asked for the card he sent her a picture of it.

[153] The father says that he held X.S.J.C.’s health card and gave the mother a copy despite her requests for the original card. He said it did not make much sense to give the mother X.S.J.C.’s health card when he is the parent who takes her to most of her doctors’ appointments. He also said it was “dangerous” for the mother to have X.S.J.C.’s health card because she is a “serial extortionist”.

[154] There is no reason why the mother could not hold X.S.J.C.’s health card. The father’s refusal to give it to her is another example of the control he has asserted over her.

[155] I do not find there to be a significant issue with the way either parent has attended to X.S.J.C.’s health.

d. X.S.J.C.’s attendance at Portuguese class

[156] Around October 2023 the father says the mother suddenly refused to allow the father to take X.S.J.C. to her to Portuguese class on Saturday mornings when X.S.J.C. is in her care. As a result, he said the court ordered the mother to take her to Portuguese class during her parenting time because the court “recognized the importance of it”.

[157] The father says that the mother, who has had no contact with her teacher, does not support X.S.J.C. going to Portuguese school.

[158] The mother’s evidence is that when the father raised the idea of X.S.J.C. attending Portuguese school when she was 3 years old, she agreed. She thought it was a good idea. She allowed the father or the paternal grandfather to take X.S.J.C. to Portuguese school during her parenting time. She says its wrong for the father to say she does not support X.S.J.C. attending Portuguese school. She said she thought that X.S.J.C. would attend until she started school as a way of learning to socialize and interact with other children before she attends school. The mother says that she believes that she should be able to arrange for activities for X.S.J.C. on Saturday mornings when she is in the mother’s care, and she can attend Portuguese school on Saturday when in the father’s care.

[159] The mother notes that the court order made requiring her to take X.S.J.C. to Portuguese school during her parenting time was made on consent and demonstrates her support for X.S.J.C. learning Portuguese. The father says the mother’s admission that she consented to the order because her lawyer told her to contradicts her claim.

[160] The father’s claims that the mother does not support X.S.J.C. learning Portuguese is rejected by the court. She supported the father enrolling X.S.J.C. in Portuguese class and allowed her to attend during her parenting time.

[161] The father’s expectation that the mother takes X.S.J.C. to Portuguese class during her parenting time indefinitely is unreasonable. The mother should be able to make plans for her and X.S.J.C. when she is in her care. He cannot see that it is unrealistic, unfair, and inappropriate to require the mother to do things with X.S.J.C. during her parenting time that he does or considers important.

[162] The father’s unreasonable expectations of the mother are further highlighted by his request for a final order that the mother take X.S.J.C. to his church on Good Friday and Easter Sunday when she is in the mother’s care on Easter.

[163] The court rejects the father’s claim that the mother does not support X.S.J.C. attending Portuguese classes.

e. The parents’ inability to communicate

[164] The father says that the mother displays an unwillingness to communicate with him. He says she does not respond to his communications and is not cooperative when issues arise.

[165] The mother says communication with the father is very difficult as he is extremely controlling, and she feels like she is being abused all over again like she claims she experienced during the relationship. She finds communication with the father to be very triggering for her as she considers him to be manipulative and believes that she has cooperated to give him what he wants yet she does not receive any cooperation in return when she requests something.

[166] It is noteworthy that the parents have not complied with paragraph 7 of the final parenting order which requires them to enroll in and communicate through the Application, ‘Our Family Wizard’.

[167] The father’s claims that the mother is unwilling to communicate with him must be considered in the context of the father’s evidence that he has approached the mother about important issues with very little time to have discussions and reach an agreement. He then becomes upset when she does not respond immediately.

[168] Both parents have not made a concerted effort to communicate appropriately with one another. The parties should immediately enroll in Our Family Wizard as ordered and commit to raising issues with one another in a timely fashion to allow for meaningful discussion. Prompt responses must follow enquiries made by the other party taking into consideration the party’s childcare and work responsibilities.

Conclusion

[169] The mother did not realize that the final parenting order granted her final decision-making responsibility for X.S.J.C. if the parties could not agree on a major decision. This is odd given she commenced the litigation that ultimately resulted in that order.

[170] As noted above, the father has taken the initiative when it comes to Portuguese School, public school, extra curricular activities, and he takes X.S.J.C. to most of her doctors’ appointments. The father is clearly taking the lead when it comes to decision making for X.S.J.C.

[171] The father clearly loves his daughter and has her best interests at heart. The mother acknowledges in several written communications with the father how much X.S.J.C. loves him and considers him her superhero. He has been proactive in ensuring her educational, health and general wellbeing are attended to and nourished. He is a devoted father.

[172] The mother admits that it is sometimes very difficult for her to maneuver the school system and she relies on X.S.J.C. to help her. The father is critical of the mother relying on a 5 year old for help. His reaction is understandable.

[173] The father’s claims that the mother does not take X.S.J.C.’s education seriously is not supported by the evidence. It also somewhat hypocritical of the father to advance this argument considering the father took X.S.J.C. out of school for 3 weeks in April 2023 to go to Portugal.

[174] Given what has occurred since the final decision-making responsibility order was made, there has been a material change in circumstances in that the mother has deferred to the father to initiate discussions when a decision must be made. This was not contemplated when the court gave the mother final decision-making responsibility if the parties cannot agree.

[175] Given the mother’s language barriers and lack of knowledge of the Canadian systems, she has been willing to follow the father’s lead when it comes to decision making for X.S.J.C. The current order with respect to decision making is not in X.S.J.C.’s best interest and it is not what the parties have been following.

[176] The father is correct that he is the more proactive parent when it comes to making decisions for X.S.J.C. and the mother is more reactive. But there is nothing wrong with this. Parents, whether together or separated, often fall into a pattern where one parent takes the initiative, does the research, and asks the questions when a decision about their child must be made. This is very normal and typical. It does not make the non inquisitorial parent a bad parent or disentitled to decision making responsibility for a child.

[177] It is entirely acceptable for the father to take the lead when looking into schools or extracurricular activities for X.S.J.C. and sharing information with mother before decisions are made. The conflict seems to have arisen because the father wants to characterize the mother as a bad parent for not doing this and leaving it to him. After taking the initiative, the father asked the mother for her input last minute and when she did not give it in the timeframe he expected, he concluded she does not care or is not interested and therefore is a bad parent. This is not reasonable.

[178] I agree with the father’s conclusion that some of the conflict between the parents was entirely avoidable. Had they both acted reasonably and raised issues with reach other well in advance of the date the decision had to be made and followed the 10 day consultation process set out in the final parenting order when it came to major decisions, they may have avoided conflict, stress and involving the police in their daughter’s life.

[179] Despite the conflict between the parties, they were able to agree on some decisions impacting X.S.J.C. She is only 5 years old, and the parties have not been faced with too many decisions. When decisions had to be made, they have been able to agree on some and not on others. They both have important insights to offer should future decisions have to be made and given the evidence before the court, they should make these decisions together. If they follow the consultation clause in the final parenting order, they will be able to come to a consensus as to what is best for X.S.J.C. It is no longer in the child’s best interests for the mother to have final decision-making responsibility for the child.

[180] The parties shall have shared responsibility for making major decisions for X.S.J.C.

Incidents of decision-making responsibility

Analysis of the relevant evidence

1. Where should X.S.J.C. attend school?

[181] Subsection 28(1)(b) of the Children's Law Reform Act grants the court the authority to decide “any aspects of the incidents of the right to decision-making responsibility”. Where X.S.J.C. attends school is incidental to or ancillary to the rights of custody.[^14]

[182] The mother proposes a change to the school X.S.J.C.’s attends as she must take public transit to deliver X.S.J.C. to her current school. She proposes transferring X.S.J.C. to Hillcrest Community Public School which is in walking distance from her home and therefore “easier” for her to get to. The mother says the father, who has the assistance of the paternal grandfather and his car, can drive X.S.J.C. to school.

[183] The father does not want X.S.J.C. to change schools and says that the mother’s request to move her again is selfish and based on her needs rather than X.S.J.C.’s needs. The father confirmed in his evidence that his father helps him transport X.S.J.C. to Portuguese school and to and from the mother’s home. He also discloses an expense of $100.00 per month on his budget on his most recent Financial Statement sworn June 11, 2024, for “gas and oil” which is presumed to be for his father’s car as he does not own a vehicle.

[184] The mother says the paternal grandfather has done most of the pickup and drop off of X.S.J.C. from her home. The father clearly has the help of his father transporting X.S.J.C. to where she must be.

[185] Neither party presented any evidence to suggest that one school is better for X.S.J.C. or that she has any specific needs that one school is better able to meet. In this case there are no identified learning disabilities or special needs and no issues around homework as X.S.J.C. is only 5 years old. As neither parent currently utilizes daycare or before and after school care, this is not a factor for the court to consider.

[186] The decision to enrol X.S.J.C. in her current school was one that was rushed and did not allow the mother sufficient time to consider which school she feels would be best for X.S.J.C. to attend. While a court should not decide which school a child attends based only on what is best for a parent[^15], it is relevant that the mother does not live in walking distance of X.S.J.C.’s current school and must take public transit to get there. If the mother drove and had a car, this might not be an issue. It is an issue because the distance makes it difficult for the mother to get X.S.J.C. to school on time. This impacts X.S.J.C.’s best interests.

[187] Given that X.S.J.C. is five years old and in kindergarten, the disruption a change in schools would cause, will not be significant.

[188] The father is rightfully concerned about the mother bringing X.S.J.C. to school late. According to school records, when X.S.J.C. is late it was mostly 5-10 minutes. It is of course not good for X.S.J.C. to be late for school except in unusual circumstances. Given that the father says he never delivers X.S.J.C. late to school, that she only misses school when in his care due to illness, and he has the help of his father and his car, I find that it is in X.S.J.C.’s best interest that her school be closer to the mother’s residence to reduce the likelihood of X.S.J.C. being late. As a result, the mother may choose a school for X.S.J.C. in her catchment.

2. Attendance at Portuguese school

[189] The father asks the court to require the mother to take X.S.J.C. to Portuguese school on Saturday when in her care. He is also prepared to pick her up from the mother and take her. He says the mother’s opposition to taking X.S.J.C. is evidence of the lack of importance she places on X.S.J.C. learning Portuguese.

[190] As noted above, the mother says she is not opposed to X.S.J.C. learning Portuguese, but she would like to arrange for activities for them to do when X.S.J.C. is in her care and not be obliged to take her to Portuguese school on Saturdays.

[191] X.S.J.C. is only 5 years old. The parents must realize that until X.S.J.C. decides for herself what interests her, they will organize and enrol her in various extracurricular activities they think she will enjoy. When she is older, she will likely have input into what activities she is more interested in and wishes to attend regularly regardless of whose home she is in.

[192] For now, the parents should be able to decide how X.S.J.C. spends her time when in their care. When she is older, the parents will have to coordinate taking X.S.J.C. to and from her extracurricular activities as they will likely take place during both parents’ parenting time. For now, the parents should not be obliged to take X.S.J.C. to any extracurricular activities the other enrols her in without their commitment in advance to take her during their parenting time.

[193] It will therefore be up to the mother to decide whether X.S.J.C. attends Portuguese classes on Saturdays during her parenting time.

Issue #3 – Has there been a material change in circumstances since the date of the final parenting order that necessitates a variation to the order with respect to the parents’ right to travel with the child for the purpose of a vacation and who should be responsible for the safe keeping of the child’s government issued documents? If yes, what new orders are in the child’s best interests?

Analysis of the relevant evidence

1. Travel with X.S.J.C.

[194] Both parties request a court order permitting them to travel with X.S.J.C. for the purpose of a vacation for up to 30 days without the other parent’s consent. It is unclear how either party could do this without the other parent’s consent as neither has court ordered parenting time for 30 consecutive days.

[195] The father does not trust the mother. He says given her past behaviour he believes if she is permitted to leave Canada with X.S.J.C., they would not return. For this reason, he says the mother should require his consent to take X.S.J.C. out of the jurisdiction, a discretion he argues he will exercise reasonably and that there is no reason for the court to believe otherwise.

[196] The mother did not give evidence on whether the father should be permitted to travel with X.S.J.C. without her consent.

[197] The mother says the father’s refusal to give her X.S.J.C.’s passport and consent to her travelling with the mother is the cause of all the conflict between them. She said they discussed and agreed that he would be permitted to take X.S.J.C. to Portugal in April 2023 and she would take her to Spain in July 2023. Based on this understanding, the mother executed a travel consent for the father to take X.S.J.C. to Portugal for three weeks in April 2023, but he failed to follow through with his end of the bargain and give the mother the same consent for X.S.J.C. to travel with her to Spain later the same year.

[198] The mother says when it came time for the father to execute the travel consent for her, he first insisted on various conditions to X.S.J.C. travelling with the mother, including make up parenting time for him upon their return, but at the last minute he refused to execute the travel consent resulting in the mother travelling without X.S.J.C. This was extremely upsetting for the mother. As a result, she says there has been a material change in circumstances that necessitates an order that she is not required to obtain the father’s consent to travel with X.S.J.C.

[199] The father admitted that the parties had an understanding that he would travel with X.S.J.C. to Portugal in April 2023 and the mother would travel with her to Spain in July 2023. The father says he had good reason to withhold his consent to X.S.J.C. travelling with the mother in July 2023. He says her disregard for the court order had steadily increased up to the date she was supposed to travel with X.S.J.C. This concerned the father who felt he did not know what the mother was capable of doing and feared she would not return X.S.J.C. to Canada.

[200] The father says the mother’s trip to Israel in April 2023 heightened his fear that the mother may not return X.S.J.C. to Canada if she is permitted to travel with the mother. The mother was denied entry into Israel because the Israeli authorities found that she was not being truthful, and they were concerned she intended to settle and work in Israel.

[201] The mother says she planned a trip to Israel in April 2023 when X.S.J.C. would be in Portugal with the father. She planned to be away for 3 weeks and purchased a round trip ticket. She had reservations for accommodations in both Jerusalem and Tel Aviv. She said that many passengers were denied entry into the country. Her desire to travel to Israel was to experience the Jewish holiday of Passover, not to relocate and live there.

[202] The father’s allegation that the mother is a threat to abduct X.S.J.C. is very serious. It is for this reason he has not given her the child’s passport or permitted X.S.J.C. to travel with her mother at all. In his urgent motion before Justice Paulseth on November 23, 2022, he provided sworn evidence that “On numerous occasions, the mother has threatened via emails and texts to abduct X.S.J.C. to Colombia and never let me see her again.” There were no such emails or text messages attached as exhibits to the father’s affidavit sworn November 10, 2022[^16], nor were any provided at the trial.

[203] In his affidavit sworn November 10, 2022, the father says that the mother has told him he will “never be permitted to have parenting time with [the child] on any Christmas’ or birthdays…and that she will disappear with [the child] before those events.” A review of the translated message from the mother does not support the father’s evidence. Her message reads, “NO, NO Christmas, NO birthdays, you are ruining your own moments with your daughter, you kill yourself, you say you want peace but you do nothing, you like war and being treated badly, life is so simple and you complicate it.” The mother’s message does not say she will disappear before the events as the father claims. In addition, the father did not provide the court with any of the messages exchanged by the parents before or after this message. The father’s evidence is misleading.

[204] The mother has left Canada to travel on at least three occasions that the court is aware of. On all three occasions the mother purchased a round trip ticket and returned to Canada as planned.

[205] The court finds the father’s explanations for refusing to allow X.S.J.C. to travel with the mother to Spain in July 2023 to be unreasonable. This was manipulative and cruel behaviour directed at the mother and X.S.J.C.

[206] The court rejects the father’s claim that the mother poses a threat to permanently remove X.S.J.C. from Canada. He provides no persuasive evidence that this is a real concern. The text messages the father relies on do not mention the child. On occasion the mother has threatened to leave Canada without the child. This falls into the category of immaturity and petulance attributed to the mother above in this judgment. She must learn a different to communicate with the father even when she finds his behaviour difficult.

[207] The court does not accept the father’s submission that if granted the discretion to allow X.S.J.C. to travel with her mother, he will act reasonably in the exercise of that discretion. The evidence does not support this conclusion. The father negotiated an agreement with the mother to allow them both to travel with X.S.J.C. in 2023. He reneged on that agreement.

[208] The conflict the parties have had around the issue of X.S.J.C. travelling with her parents has been intense. It has fuelled a lot of conflict and litigation. This amounts to a material change in circumstances since the date of the final parenting order which does not address X.S.J.C. travelling outside of Canada with her parents.

[209] As there is no evidence before the court to find that the mother poses a serious threat to permanently remove X.S.J.C. from Canada if permitted to travel with her, it is in X.S.J.C.’s best interest that both parents be permitted to travel with her for the purpose of a vacation without the other parent’s consent provided they are given advance notice and provided with a detailed itinerary of the trip.

2. X.S.J.C.’s Passport, OHIP card and other government issued documents

[210] Due to the mother’s repeated breaches of the court order and his concerns that she may abduct X.S.J.C., the father held X.S.J.C.’s passport and would not give it to the mother when she requested it.

[211] Given the court’s finding that the father’s refusal to allow X.S.J.C. to enjoy the experience of travelling with her mother and meeting her half-sister was unreasonable, the court finds that it is X.S.J.C.’s best interests that the mother hold her passport and provide it to the father when X.S.J.C. is travelling with him. He shall return it to her promptly upon his return to Canada. The mother should ensure the father always has an up-to-date copy of X.S.J.C.’s passport(s).

[212] Based on the evidence that the father takes X.S.J.C. to most of her doctors’ appointments, the court finds it is in X.S.J.C.’s best interests that the father holds her health card and provide it to the mother when needed. She should also be provided with a copy of the OHIP card.

Issue #4 – Has there been a material change in circumstances since the date of the final parenting order that necessitates a variation of the order with respect to the parenting regime during statutory and school holidays? If yes, what new order is in the child’s best interests?

Analysis of the relevant evidence

[213] The conflict between the parties has at times been severe and resulted in police involvement. This is not in X.S.J.C.’s best interests. This level of conflict because of the lack of specificity of a parenting regime for some school or statutory holidays was not anticipated at the date of the final parenting order. The order assumed a level of cooperation between the parties that would work to avoid the conflict that occurred. This did not happen. Therefore, the order in its current form with respect to school and statutory holidays is not meeting X.S.J.C.’s needs and is therefore not in her best interests.

[214] The parties have asked the court to find that there has been a material change in circumstances requiring a change to the final parenting order to allow for X.S.J.C. to be in the father’s care the first week of the school Christmas vacation and with the mother second week. An order as requested will follow.

[215] The father asks that X.S.J.C. be returned to his care the evening before school starts after the mothers Christmas vacation parenting time. As the week-to-week parenting order will not be changed, the mother will return X.S.J.C. to school the morning after the Christmas school break and the parent who has her in their care pursuant to the regular week to week schedule shall pick her up at the end of the day.

[216] The father asks for an order that X.S.J.C. be in each parent’s care for two consecutive weeks during the school summer vacation. The mother asks for X.S.J.C. to spend an entire month with each parent alternating each year between July and August.

[217] X.S.J.C. is only 5 years old. She should not be away from either parent on a regular basis for 30 days. At her age, it is more appropriate that she only spend up to 14 days away from a parent unless the parents agree otherwise. Based on her young age, the summer school vacation shall be shared by alternating two weeks at a time with each parent.

[218] The final parenting order provides at subparagraph 1(e) that X.S.J.C. will spend Easter, New Years Day, Family Day, Thanksgiving and all other public holidays with the parent whose care she is in pursuant to the week-to-week parenting schedule. The court heard no evidence that supports changing this provision of the final parenting order.

[219] The parties both request orders for parenting time on X.S.J.C.’s birthdays and their respective birthdays, which was not contemplated in the final parenting order. These types of orders have led to conflict in the past between the parties. Therefore the order requested by both parties is not supported by the evidence. If the parties cannot agree annually to cooperate to allow for some parenting time on theirs and X.S.J.C.’s birthday when she is not in their care, the regular week to week parenting time shall prevail. X.S.J.C. can celebrate these occasions with the parent the next week she is in their care.

[220] Both parties ask for an order setting out when X.S.J.C. is in their care over the school March break vacation. The father asks that the parenting time alternate yearly and be from Monday to Friday of the March break school vacation whereas the mother asks that the parties alternate having X.S.J.C. for the entire school break.

[221] An order that requires the parties to exclude the weekend before and after the school March break vacation seems to be a recipe for conflict which this court is attempting to avoid. Having X.S.J.C. in their care for the entire school March break also allows a parent to travel with X.S.J.C. if they wish. Therefore, the entire school March break vacation should be alternated annually and shall take place from the last day of school before the March break until the first day return to school after the March break.

[222] The father asks the court to order the mother to take X.S.J.C. to Church on Good Friday and Easter Sunday. For all of the reasons set out above, the court will not make this order. Each parent is entitled to celebrate religious holidays as they chose when X.S.J.C. is in their care.

Issue #5 – Has there been a material change in circumstances since the date of the enforcement order that necessitates a variation of the enforcement order? If yes, what new order is in the child’s best interests?

Analysis of the relevant evidence

[223] The father says the mother is “ungovernable”, has no respect for court orders, and a police enforcement order is necessary to ensure her compliance with the order.

[224] Both parents have violated the final parenting order.

[225] Courts are reluctant to involve police in the lives of children unless it is absolutely necessary.

[226] The court does not want X.S.J.C. to have to experience the involvement of the police in her life. Hopefully she was too young to be impacted by their involvement to date.

[227] While the mother’s breaches of the parenting order are very concerning to the court, it heard of no breach since March 2024.

[228] The court is going to take the mother at her word and accept her assurance and that she has learned her lesson and will not violate the court’s orders again. She is warned if she wilfully violates the order of this court again, she may face the very serious consequences she avoided on this Motion to Change.

[229] The enforcement order shall be terminated. The parties are expected to comply with each and every term of this order and previous orders of the court. They are expected to put any changes they agree to whether on one occasion or on a permanent basis in writing. They shall make every effort to avoid involving the police in their daughter’s life.

Issue #6 – What if any changes to the final child support order should flow from the answers to the questions set out above

[230] The parties request child support from the other. The father’s request is for prospective support only based on the assumption that X.S.J.C. will be in his primary care. As there will be no change to the shared parenting arrangement the presumption that the mother pays the father child support does not apply.

Start date for child support

[231] The mother issued her Amended Application seeking an order for child support from the father in accordance with the Guidelines on April 4, 2024. She is seeking an order varying the father’s child support retroactive to June 3, 2021, the date of the final parenting order.

The law

[232] An order for child support that predates the mother’s formal request for child support as set out in her Amended Response to Motion to Change 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;

[233] 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.[^17] 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.

[234] The framework in Colucci addresses a request to retroactively increase the support contained in an order or an agreement.

[235] 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.

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

[237] 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).

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

Application of the relevant evidence to the law

1. Presumptive start date for child support

[239] The mother issued her Amended Response to Motion to Change on April 4, 2024. She gave no evidence of an earlier date on which she asked the father to increase or review his child support obligation. April 4, 2024, is the both the effective and formal date of notice to the father that the mother was requesting a change to his child support payments and therefore, the presumptive start date for a change to child support.

[240] The mother asks the court to order an increase in child support retroactive to June 3, 2021, the date of the final parenting order. This is almost three years prior to the effective and formal date of notice.

[241] The court must therefore decide whether to depart from the presumptive start date and order an earlier date for the new quantum of child support payable by the father.

(a) Does the mother have an understandable explanation for the delay in coming before the court?

[242] The mother provided no explanation for waiting to seek an increase in child support from the father until she was served with his Motion to Change.

(b) Has either party engaged in blameworthy conduct?

[243] The parties had a positive obligation to provide the other with annual financial disclosure pursuant to Justice Zisman’s order. The court did not hear evidence as to whether either complied with this obligation.

[244] Once this litigation was commenced and even after the mother amended her Response to Motion to Change to include a request to review the father’s child support obligation, the father failed to comply with his disclosure obligations pursuant to the final parenting order and the Guidelines.

[245] The mother provided the financial disclosure ordered of her during the litigation.

[246] Both parties have engaged in some level of blameworthy conduct in not providing financial disclosure required of them to the other party. While the mother provided proper financial disclosure to the father during the litigation, the father did not. As the support payor and a lawyer, he ought to have provided the mother with annual financial disclosure and pay the appropriate amount of child support based on that disclosure. He did not do that.

[247] The father’s failure to comply with disclosure order in the final parenting order prior to this litigation is blameworthy conduct. His failure to provide the mother with full and frank financial disclosure during the litigation and before the trial of this matter is inexplicable and will result in the court having to draw a negative inference against him.

(c) Circumstances of the child

[248] The mother is of very modest means. She gave evidence repeatedly that she struggles to find work to support herself and X.S.J.C. She has subjected herself to pharmaceutical trials to earn money.

[249] If the father’s income has increased since the date of the final order, clearly X.S.J.C. would have benefitted from an increase in child support paid to the mother for her benefit.

(d) Will an order for child support prior to the presumptive start date cause the father hardship?

[250] According to the father’s Financial Statement sworn June 11, 2023, he has extremely low expenses which are $4000.00 less per year then his income. The father also enjoys living with his father rent free.

[251] The evidence demonstrates that an order for retroactive child support with a fair payment schedule would not create hardship for the father who is in a surplus position each month after paying his expenses.

Conclusion regarding the start date for child support

[252] The mother’s delay in coming before the court was not extensive given all the circumstances of this case but her request for a retroactive increase in child support back to the date of the final order is not reasonable. The final order was made after lengthy litigation and on consent. The mother has made no suggestion that the final support order was incorrect or based on false or incomplete disclosure. She provides no reason why the order would be varied as of the date of the final order.

[253] Both parties engaged in blameworthy conduct but the father’s failure to provide adequate financial disclosure to the mother despite repeated requests by her lawyer is a very serious breach of his obligations. The father’s conduct in this regard was more egregious than that of the mother.

[254] As the child’s circumstances would have improved with an increase in child support and hardship to the father of having to pay a retroactive increase will not be substantial given his significant monthly surplus, application of the evidence to these factors provides support for the court to exercise its discretion to depart from the presumptive start date for child support.

[255] Given the court’s findings with respect to the Colucci factors, and the requirement in the final parenting order to provide annual financial disclosure, the court finds that it is appropriate to exercise its discretion to deviate from the presumptive start date for a new child support order. If there has been a change in the father’s income as contemplated by the Guidelines, a retroactive increase in his support obligations will be granted back to June 1, 2022, the first date upon which they parties were required to exchange financial disclosure pursuant to Justice Zisman’s order.

2. The parties’ respective incomes for the purpose of calculating child support

[256] The court must now determine the parties’ incomes for the purpose of calculating child support.

[257] Both parties ask the court to impute an annual income to the other parent claiming their income tax returns are not an accurate reflection of their income for the purpose of child support.

3. The Law with respect to imputation of income

[258] Subsection 19(1) of the Guidelines grants the court the authority to impute income to a parent if the court considers doing so appropriate in circumstances including when a parent is intentionally underemployed or unemployed, or when a parent has failed to provide income information when under a legal obligation to do so.

[259] 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.[^18]

[260] The Ontario Court of Appeal in Drygala v. Pauli 2002 41868 (ON CA), [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?

[261] 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.[^19] 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.

[262] 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.[^20]

[263] The court stated in Drygala v. Pauli, supra 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.

[264] A parent’s obligation to support his or her child comes before their own interests and choices. A parent must act responsibly and reasonably when making choices that impact their income and, in turn the level of child support generated by that income. If a parent makes unreasonable financial or employment choices that results in a reduction of their income and child support, they risk the court imputing income to them at a higher level for the purpose of child support.[^21]

[265] 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.[^22] It must be reasoned, thoughtful and highly practical.[^23] 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.[^24]

[266] 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.[^25]

[267] 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.[^26]

[268] A person’s lifestyle can provide the basis for imputing income.[^27]

[269] 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.[^28]

[270] 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.[^29] 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.[^30]

4. What is the mother’s income for the purpose of child support and does income have to be imputed to her?

[271] The mother’s evidence is that she has worked various jobs to support herself and X.S.J.C. as well as receiving Ontario Works. Her most recent Financial Statement sworn June 13, 2024, discloses an annual employment income of $8124.00, annual income from social assistance of $6408.00, and an annual child tax benefit of $8400.00. Her total annual income amounts to $22,932.00. That same financial statement discloses an annual budget of $38,328.00 and debts of $24,837.00.

[272] The mother acknowledges that her sworn Financial Statements do not include income she earned that was not declared with Revenue Canada. She gave this evidence as though it is entirely reasonable not to disclose this income because she is not paying income tax on it. She genuinely appeared not to understand that this income should have been disclosed on her sworn Financial Statement. The father asks the court to conclude that the mother is dishonest and swore a false Financial Statement and therefore lacks credibility.

[273] The father also says that the mother’s bank statements for 2022 and 2023 have significant deposits that support an imputation of income of $40,000.00 per year as he requests. According to the father, she shows deposits totalling $27,206.16 in 2022 and $39,708.90 in 2023.

[274] The mother says as a lot of her deposits are attributable to her moving money between accounts, the deposits in her accounts as totalled by the father is not an accurate reflection of her income. A review of her bank statements discloses transfers between accounts.

[275] There are a lot of gaps in the mother’s evidence regarding her income. While she did say that she received some gifts of money that allowed her to travel, the court heard no evidence explaining how she meets her annual expenses of $38,320.00 or how she was eligible for various credit cards and loans disclosed on her sworn Financial Statement when she has very little income. It is also unclear how the mother’s bank account could have $39,708.90 in deposits in 2023 given her declared income even if you account for monies going between her accounts.

[276] For these reasons, the court cannot rely on the mother’s income tax returns to determine her annual income. Income will have to be imputed to the mother for the purpose of child support.

[277] Based on the mother’s limited education, her language barrier given she is not proficient in English and her job experience to date, it would be reasonable to impute an annual income to her based on the minimum wage[^31] in Ontario. I am satisfied based on the evidence that the mother is earning or can earn more than minimum wage income. She is a motivated person who wants to better herself for the benefit of her daughters. She has taken on various jobs and worked hard to meet the needs of herself and X.S.J.C. The evidence supports an imputation of income to the mother of $40,000.00 a year given her drive, energy and desire.

5. What is the father’s income for the purpose of child support and does income have to be imputed to him?

[278] The father is a criminal lawyer who did not practice law regularly between 2013 and 2017 and 2019 and March 2024. Between 2022 and March 2024, but for his refusal to abstain from alcohol, he could have been practicing law. He says he has a long way to go before earning a healthy income as, for example, he has been unable to become empanelled with Legal Aid Ontario and therefore is turning away a lot of potential clients.

[279] His most recent Financial Statement sworn June 11, 2024, discloses an annual income from self employment of $21,494.16. He discloses an annual budget of $17,190.84, has debts of $65,479.88 and assets of $63,429.99. In his Financial Statement filed with his Motion to Change sworn June 26, 2023, the father discloses an annual income from self employment of $30,699.96, an annual budget of $24,005.40, assets of $56,408.79 and debts of $67,507.00.

[280] The father has a line of credit with Scotiabank for which he owes $60,000.00. The court was given no evidence of what this debt was incurred for or how the father was eligible for such a loan on his income.

[281] The father’s financial statement sworn for trial shows no expense for rent for which he swore he paid $500.00 per month on his previously sworn financial statement. He discloses no amount for vacation[^32] on either sworn financial statement despite travelling to Portugal with X.S.J.C. in April 2023. He shows no expense for clothing for himself on either sworn Financial Statement. He also discloses no expense for alcohol on his June 23, 2023 sworn Financial Statement which is almost a year before he agreed to abstain from alcohol in order to be able to resume practicing law in Ontario.

[282] The father failed to provide the mother and the court with the most basic financial disclosure for a self-employed person being asked to pay child support. He has therefore left the court in a very difficult position when asked to fix his income for the purpose of child support.

[283] As a result of the father’s failure to provide full and frank financial disclosure, the court cannot rely on his income tax returns to determine his income and income will have to be imputed to the father for the purpose of determining child support.

[284] Given he has a child to support, the father should have agreed to abstain from alcohol when the LSO asked him to do so as a condition of his being able to practice law. His choice not to abstain has resulted in his being underemployed for quite some time. This was not a reasonable choice for the father to make as it was done at the expense of X.S.J.C. potentially receiving and benefitting from much higher child support.

[285] The father gave no evidence to suggest his underemployment was due to any needs of the child or his own reasonable health or education needs. The court therefore finds the father is underemployed and income must be imputed to him.

[286] The final parenting order requires the father to pay the mother child support in 2021 based on an annual income of $29,000.00. The father was not practicing law at the time. She did not argue he was underemployed. Does this preclude her from arguing that he is underemployed now?

[287] The mother should be permitted to argue the father is underemployed after refusing to abstain from alcohol at the earliest date he could have done so after the date of the final parenting order. She should not be permitted to seek an increase in child support based on an imputation of income on the basis that he is underemployed back to the date of the final parenting order. She ought to have argued in the first instance the father was underemployed, but she did not do so. She cannot do now what she chose not to do then.

[288] The medical assessment the LSO obtained of the father in which it was recommended that he abstain from alcohol as a condition of being permitted to practice law was dated June 24, 2022. The father contested the findings of the assessment and refused to agree to abstain from alcohol. I find based on his evidence, that as of June 2022, the father was intentionally underemployed and that his underemployment was not for any reason that would prohibit the court from imputing income to him.

[289] Had the father agreed to abstain from alcohol consumption in June 2022 and activated his license to practice law, it is reasonable to presume that he would have taken some time to re-establish himself and build up his practice. I find that six months is a reasonable period for him to have done this.

[290] I find that a lawyer practicing criminal law as a sole practitioner in Toronto should be able to earn an annual income between $80,000.00 and $120,000.00. For this reason, and considering all of the evidence, income shall be imputed to the father for the purpose of child support at $70,000.00 per year for 2023, $80,000.00 per year as of January 1, 2024 and $90,000.00 per year as of January 1, 2025.

Conclusion regarding the quantum of child support

[291] The final parenting order requires the father to pay full table child support in accordance with the Guidelines despite the shared parenting regime. Neither party gave evidence relevant to this issue nor made submissions as to how the court should calculate the child support payable by either party if the shared parenting regime is not varied.

[292] The final order requires annual disclosure be exchanged by the parties commencing on June 1, 2022. Had this occurred, it could have resulted in a variation of the child support order as of January 1, 2022 or January 1, 2023, if there had been a material change in the father’s income. A material increase in the mother’s income may have also resulted in a change to the father’s child support obligation.

[293] Section 9 of the Guidelines provides that,

Where each parent or spouse exercises parenting time with respect to a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account,

(a) the amounts set out in the applicable tables for each of the parents or spouses;

(b) the increased costs of shared parenting time arrangements; and

(c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.

[294] As noted above, neither party called evidence on this issue, specifically, the increased costs of a shared parenting regime. Other than relying on recently sworn Financial Statements, neither party provided much evidence on their condition, means, needs and other circumstances or that of the child.

[295] Given the lack of evidence on this issue, the court finds for the following reasons that the straight set off approach of table child support payable by each party based on their income is not appropriate:

1. The Father lives with his father rent free although the mother pays subsidized rent of only $234.00 per month.

2. The father has much higher earning potential than the mother.

3. According to the parties sworn financial statements, the mother says she spends $5760.00 per year on clothing and activities for X.S.J.C. whereas the father says he spends $3720.00 annually on clothing, school fees and activities.

4. The mother has an annual transportation expense of $4200.00 whereas the father’s annual expense is only $2400.00.

5. The mother’s annual budget is more than twice that of the father.

[296] For all the reasons set out above, the father shall pay the mother child support as follows:

2023

1. For 2023 income shall be imputed to the father of $70,000.00 annually. This generates a child support obligation of $654.00 per month pursuant to the Guidelines. Income shall be imputed to the mother for 2023 at $40,000.00 annually. This generates a child support obligation of $359.00 per month pursuant to the Guidelines. The set off of each party’s child support obligation for 2023 is $295.00. For the reasons set out above, the father shall pay the mother child support for X.S.J.C. for 2023 of $438.00 per month, or 67% of his table child support.

2024

2. For 2024 income shall be imputed to the father of $80,000.00 annually. This generates a child support obligation of $745.00 per month pursuant to the Guidelines. Income shall be imputed to the mother for 2024 at $40,000.00 annually. This generates a child support obligation of $359.00 per month pursuant to the Guidelines. The set off of each party’s child support obligation for 2023 is $386.00. For the reasons set out above, the father shall pay the mother child support for X.S.J.C. for 2023 of $500.00 per month, or 67% of his table child support.

2025

3. Commencing January 1, 2025, income shall be imputed to the father of $90,000.00 annually. This generates a child support obligation of $834.00 per month pursuant to the Guidelines. Income shall be imputed to the mother for 2023 at $40,000.00 annually. This generates a child support obligation of $359.00 per month pursuant to the Guidelines. The set off of each party’s child support obligation for 2025 is $475.00. For the reasons set out above, the father shall pay the mother child support for X.S.J.C. commencing January 1, 2025 of $559.00 per month, or 67% of his table child support.

Order to go as follows:

[297] The father’s Motion to Change the week-to-week shared parenting arrangement set out in the final order of Justice Roslyn Zisman dated June 3, 2021, is dismissed.

[298] As there has been a material change in circumstances since the final order of Justice Zisman dated June 3, 2021, with respect to decision making responsibility for X.S.J.C., incidents of decision-making responsibility, parenting time during school and statutory holidays and child support, the order is varied as follows:

(a) Paragraph 9 is varied to delete the words “their best efforts to make” such that the order shall now be: “The Applicant and Respondent shall make major decisions about [X.S.J.C.]’s upbringing jointly. Major decisions are limited to decisions about [X.S.J.C.]’s education, health care, religion and extra-curricular activities.”

(b) Paragraph 9 of the order shall be amened to include that the mother shall choose the school X.S.J.C. attends in her catchment. She shall consult with the father and obtain his input on the decision, but the final decision shall be hers.

(c) Paragraph 9 shall be amended to provide that X.S.J.C.’s current doctor and dentist shall continue to treat her. If the parents are advised by X.S.J.C.’s doctor or dentist that they can no longer treat her, the parents shall attempt to agree on a new doctor/dentist. If they cannot agree after meaningful discussion as contemplated by paragraph 10 of the order of Justice Zisman dated June 3, 2021, the father shall have final decision making on this issue.

(d) Paragraph 10 is deleted and replaced with the following:

If either party identifies a major decision to be made about [X.S.J.C.], he or she shall initiate a process through OFW that shall run for ten days, or longer if necessary, during which time the parties shall make their best efforts to agree on a decision that serves [X.S.J.C.]’s best interest. The party who initiates the joint decision-making process shall upload all relevant documents and information, describe the decision to be made, set out his or her proposal for the decision and provide reasons. The parties shall then exchange information, ideas and proposals promptly and attentively until they reach a joint decision. If no joint decision is reached either party may apply to the court to have the issue determined.

(e) Paragraphs 1(c) and 1(d), are deleted and replaced with the following:

The parties shall have the following parenting time during school and statutory holidays, in addition to the holiday parenting schedule set out in sub paragraph 1(e) of Justice Zisman’s order dated June 3, 2021, as follows:

(i) X.S.J.C. shall spend two weeks at a time with each parent during the school summer vacation unless the parties agree otherwise. If a parent wishes to travel with X.S.J.C. during the school summer vacation, they may elect to have X.S.J.C. in their care for up to three consecutive weeks during the school summer vacation to allow for the travel. Should a parent elect to have parenting time for three consecutive weeks in the summer to travel, the other parent may also elect to have X.S.J.C. in their care for three consecutive weeks during the summer whether they are travelling or not, and the balance of the school summer vacation shall be shared equally by alternating the remaining weeks (one week at a time with each parent) between them. A parent who elects to have X.S.J.C. in their care for three weeks in the summer to allow for travel shall notify the other parent in writing of this intention no later than April 1^st of that year. The other parent shall advise the travelling parent by May 1^st if they wish to have X.S.J.C. in their care for three weeks as well or if the balance of the summer will be shared by X.S.J.C. spending two weeks at a time with each parent.

(ii) X.S.J.C. shall be in the father’s care every year from the last day of school leading into the Christmas school vacation for one week and in the mother’s care the second week of the Christmas school vacation with return to school the first day in the New Year.

(iii) X.S.J.C. shall spend the entire school March break vacation with the mother in odd numbered years and with the father in even numbered years. For clarity the parent who has care of X.S.J.C. shall have her from the end of the last day of school before the school March break school vacation until return to school after the last day of the March break school vacation.

(f) Paragraphs 4, 6, and 15[^33] of Justice Zisman’s order are varied as follows:

1. Commending on January 1, 2023, and up to and including December 1, 2023, the father shall pay child support to the mother for X.S.J.C. of $438.00 per month based on the findings set out in this judgment. The father shall receive credit against this amount for amounts paid through the Family Responsibility Office.

2. Commending on January 1, 2024, and up to and including December 1, 2024, the father shall pay child support to the mother for X.S.J.C. of $500.00 per month based on the findings set out in this judgment. The father shall receive credit against this amount for amounts paid through the Family Responsibility Office.

3. Commending on January 1, 2025, and on the first of each month thereafter, the father shall pay child support to the mother for X.S.J.C. of $559.00 per month based on the findings set out in this judgment.

Additional orders

[299] Once the mother chooses a school for X.S.J.C. to attend in her current school catchment, the mother shall not be permitted to move X.S.J.C.’s residence a distance that results in the father having to travel a greater distance from his home to X.S.J.C.’s school.

[300] The mother shall hold X.S.J.C.’s passport and provide it to the father when he is travelling with X.S.J.C. He shall return the passport to the mother for safe keeping immediately upon his return to Ontario. The mother shall provide the father with a photocopy of X.S.J.C.’s current passport(s).

[301] The father shall hold X.S.J.C.’s health card and provide it to the mother upon request. She shall return it to the father immediately after she no longer requires the health card. The father shall provide the mother with a photocopy of X.S.J.C.’s current health card.

[302] Both parties shall be permitted to travel with X.S.J.C. during their parenting time for a purpose of a vacation outside of Canada without the other parent’s consent. At least 14 days before travel, the travelling parent shall provide the other parent with a detailed itinerary including the dates of travel, where X.S.J.C. will be staying, a phone number where she can be reached, and the mode of travel.

[303] A parent travelling with X.S.J.C. shall facilitate video calls between X.S.J.C. and the other parent twice per week while she is away on vacation.

[304] All other provisions of Justice Zisman’s order shall continue in full force and effect. Specifically paragraphs 1(a), (b) and (e), 2, 3, 5, 7, 8, 11, 12, 13, 14 shall continue to have full force and effect.

[305] The order of Justice Debra Paulseth dated November 23, 2022 is terminated.

[306] 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.

Released: October 8, 2024

Signed: Justice Melanie Sager

[^1]: K.M. v. J.R., 2021 ONSC 111. [^2]: M.A.B. v. M.G.C., 2022 ONSC 7207. [^3]: Hornan v. Hornan, 2007 CarswellMan (Man. Q.B.). [^4]: Segal v. Segal, (2002) 2002 41960 (ON CA), 26 R.F.L. (5^th) 433 (Ont. C.A.). [^5]: wee, (2016) ONCA 604. [^6]: Wreggitt v. Belanger, 2001 20827 (ONCA); Hackett v. Sever, 2017 ONCJ 193; K.M. v. R.J., 2022 ONSC 111. [^7]: Armstrong v. Vanneste, 2017 ONSC 5835 (SCJ); Laurin v. Martin, 2005 CarswellOnt 5084 (ON CA). [^8]: The father gave evidence that X.S.J.C. was in his care during this period for 14 of the mother’s allotted 45 days. He said this is 37% of her parenting time but it is actually 31%. [^9]: The following are the errors on the father’s chart: January 2022 has 30 days when there are 31; April 2022 has 29 days when there are 30; February 2023 has 27 days when there are 28; May 2023 has 30 days when there are 31; and, June 2023 has 28 days when there are 30. [^10]: The father’s evidence is that when he was not practicing law, he was providing support to various lawyers on a contract basis and therefore was self-employed. [^11]: The father’s evidence is that as he refused to abstain from the consumption of alcohol, he forfeited his license to practice law rather than it being suspended by the LSO. [^12]: The father equates the mother delivering the child to school late as a violation of an order requiring her to take her to school every day. [^13]: These charges were later dropped by the crown. [^14]: Deschenes v. Medwayosh, 2016 ONCJ 567 [^15]: Thomas v. Osika, 2018 ONSC 2712 [^16]: The father relied on this affidavit as part of his evidence at the trial. [^17]: D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 [^18]: Drygala v. Pauli 2002 41868 (ON CA), [2002] O.J. No. 3731(Ont. CA). [^19]: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.). [^20]: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719. [^21]: Duffy v. Duffy, 2009 NLCA 48, Reece v. Thomas, 2017 ONCJ 311. [^22]: Riel v. Holland, 2003 3433 (ON CA), at paragraph 23. [^23]: Hagner v. Hawkins 2005 43294 (ON SC), (Ont. S.C.) at paragraph 19. [^24]: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, 2000 22560 (ON SC), [2000] O.J. No. 453, (Ont. Fam. Ct.). [^25]: 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). [^26]: Szitas v. Szitas, 2012 ONSC 1548; Woofenden v. Woofenden, 2018 ONSC 4583. [^27]: Aitken v. Aitken [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373. [^28]: Lawson v. Lawson, 2006 26573 (ON CA). [^29]: Smith v. Pellegrini, 2008 46927 (ON SC), [2008] O.J. No. 3616, (Ont. S.C.); Maimone v. Maimone, 2009 25981 (ON SC), [2009] O.J. No. 2140, (Ont. S.C.). [^30]: Charron v. Carriere, 2016 ONSC 4719 [^31]: Minimum wage increased to $17.20 per hour in Ontario on October 1, 2024. This amounts to an annual income of $35,776.00 from full time employment. [^32]: The mother who has also taken several vacations did not include this expense on her sworn Financial Statement. [^33]: The current interest rate will apply to this order.