WARNING

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

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

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

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

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

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

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

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

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

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

( e ) not do what the court forbids;

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

( g ) obey any other order.

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

ONTARIO COURT OF JUSTICE

DATE: October 30, 2024

COURT FILE No.: Toronto 22-43338

BETWEEN:

N.K.M. Applicant/Father

— AND —

K.E. Respondent/Mother

Before Justice Debra Paulseth

Heard on October 21-24, 2024

Reasons for Judgment released on October 30, 2024

Counsel: Linda J. Wilson, for the applicant Tajinder Kaur Sivia, for the respondent

Paulseth J.:

Overview

[1] The parties married on June 12, 2010. They have two children, both boys: D born […], 2006 and K born […], 2015. They separated in September of 2020, but respondent/mother (R/M or mother) did not move out of the home until January 2022. They were divorced on October 5, 2022. Both boys continued to live with their father.

[2] On November 15, 2022, the applicant/father (A/F or father) applied to this court, seeking sole decision making and primary residence of both boys and child support based on the R/M’s full time and part time earnings.

[3] The R/M’s Answer makes her own claims for sole decision making and child support, including section 7 expenses.

[4] Temporary orders were made on consent for child support payable by the R/M and parenting time to R/M that has increased from two hours a week to one overnight a week and alternate weekends.

[5] D. is no longer the subject of parenting orders because he is now 18 years of age. Father is seeking child support for him and eventual section 7 expenses for his college costs.

[6] The parties agreed to final orders made on October 10, 2023, which included:

(1) As of September 25, 2023, retroactive child support and section 7 expenses are fixed at zero;

(2) Claims for section 7 expenses will be limited to school uniforms and shoes;

(3) Each party has direct access to information for K;

(4) Each party may travel with K up to 14 days without the written consent of the other parent; and

(5) Specific Christmas and New Year’s parenting time.

[7] The parties also agreed to a referral to the Office of the Children’s Lawyer (OCL) regarding K. The OCL decided to assign a clinical investigator to prepare a section 112 Courts of Justice Act (CJA) report.

Position of the Parties

[8] The A/F is seeking final decision-making for K, with additional corollary relief relating to documents and travel. He is agreeable to R/M having regular parenting time with K. He also seeks child support for both children, based on the Child Support Guidelines (CSG) and a proportionate sharing of section 7 expenses. In closing submissions, counsel for father suggested that week about sharing of K would also be in the child’s best interests, as an alternative.

[9] The R/M seeks final decision making responsibility and primary residence of K. with a structured parenting time order to manage the transfer of the child’s residence and ongoing parenting time to father of alternate weekends. She offers to pay CSG support for D upon receiving proof that he is in full time attendance at a post secondary educational institution.

Parenting Orders: Legal Framework

[10] Subsection 21 (1) of the Children’s Law Reform Act (the Act) reads as follows:

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

(a) decision-making responsibility with respect to the child; and

(b) parenting time with respect to the child.

[11] Subsection 18 (1) of the Act defines decision-making responsibility as follows:

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

(a) health,

(b) education,

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

(d) significant extra-curricular activities;

[12] Any proceeding with respect to children is determined with respect to the best interests of the particular child before the court in accordance with the considerations set out in section 24 of the Act.

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

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

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

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

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

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

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

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

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

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

[15] The court notes the special provisions in subsection 24(4) of the Act relating to family violence. The following paragraphs provide further commentary about this significant issue.

[16] The Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22 made the following observations about family violence:

1. The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis (par. 146).
2. The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497. (par. 145).
3. Domestic violence allegations are notoriously difficult to prove. Family violence often takes place behind closed doors and may lack corroborating evidence. Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support (par. 145).

[17] Justice Deborah Chappel wrote about the importance of family violence as a best interests factor in paragraph 86 of McBennett v. Danis, 2021 ONSC 3610, as follows:

The broad definition of family violence and the specific inclusion of this factor as a mandatory consideration in determining the best interests of children recognize the profound effects that all forms of family violence can have on children. These consequences can be both direct, if a child is exposed to the family violence, or indirect, if the victimized parent’s physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact their ability to meet the child’s physical and emotional needs.

[18] In cases of family violence, particularly spousal violence, it is crucial that the court consider whether a co-operative parenting arrangement is appropriate. A victim of family violence might be unable to co-parent due to the trauma they have experienced or ongoing fear of the perpetrator. In addition, co-operative arrangements may lead to opportunities for further family violence. See: Bell v. Reinhardt, 2021 ONSC 3353.

[19] Family violence can be insidious. It can take many forms, and frequently involves coercive and controlling behaviors which are usually very difficult to prove because they often take place in private. Abusers, especially those of the coercive and controlling kind, are often skilled manipulators; they can be charming, they can be convincing liars, and they can be very persuasive. Victims of family violence are often the only witnesses who can attest to their abuser’s behavior and unfortunately, they are sometimes not believed because of their inability to support their allegations with objective third party evidence. See: Volgemut v. Decristoforo, 2021 ONSC 7382.

[20] Denigrating your spouse in front of the children fits within the definition of family violence. See: Ammar v. Smith, 2021 ONSC 3204; McIntosh v Baker, 2022 ONSC 4235.

[21] Violence need not be physical. Emotional and psychological abuse can have a devastating impact on a child. See: Dayboll v. Binag, 2022 ONSC 6510; El Khatib v. Noun, 2023 ONSC 1667.

[22] Financially controlling your spouse by deliberately making inadequate support payments can constitute family violence. See: N.M. v. S.M., 2022 ONCJ 482; F.S. v. M.B.T., 2023 ONCJ 102.

[23] Failure to speak out earlier and inconsistent evidence is common for victims of domestic violence. See: A.E. v. A.B., 2021 ONSC 7302; N.M. v. S.M., 2022 ONCJ 482.

[24] The court is also very aware that family violence is sometimes difficult for the victim to prove. It is often not reported. There may be many reasons for this. There will often be no medical, police or Children’s Aid Society reports to corroborate allegations of family violence. Victims sometimes minimize and rationalize the abuse. The family violence can take place in private so that there are no witnesses. Control and coercion can be subtle and only evident to the victim. See: Wiafe v. Aboakwa-Yeboah, 2021 ONCJ 201.

[25] The list of best interests’ considerations in the Act is not exhaustive and is not simply a tabulated checklist. Caselaw has added some context to this list and the court includes a brief summary of those comments:

(1) The court is to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.

(2) It will often be important to determine if a parent will follow the terms of a court order. See: Wiafe v. Aboakwa-Yeboah, 2021 ONCJ 201.

(3) The parents should make every effort to protect the child from adult conflict see section 33.1 of the Act.

(4) Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, 2009 ONSC 6423.

(5) The test for determining parenting time is what order is in the best interests of the child. A child should have as much time with each parent as is consistent with the best interests of the child. See Knapp v. Knapp, 2021 ONCA 305, and Barendregt v. Grebliunis, 2022 SCC 22.

(6) The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being. Moreover, the child has a right to have contact with both parents. See: Klymenko v. Klymenko, 2020 ONSC 5451.

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

(8) There is a presumption that regular parenting time by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. See Jafari v. Dadar, [1996] N.B.J. No. 38 (NBQB).

Summary of the Evidence

[26] A summary of the evidence of the father follows:

(1) In October of 2022, an argument between the parties led to criminal charges being laid against the father for an alleged assault and threat that occurred in June of 2022. These charges were resolved by a section 810 (Criminal Code of Canada) peace bond for 12 months.

(2) In November of 2022, the father began this application before the court and the mother answered in January 2023.

(3) Father states that he has always been the primary caregiver of the two children. He has had a few “odd jobs” but has mainly been a stay at home parent, while the mother was the primary earner. The mother has always worked full time, except for maternity leaves with each child, as a cleaner and often worked part-time as well.

(4) In father’s view, mother only exercised sporadic contact with the children, from January to June of 2022, and for about one hour at a time. Father watched the children try to reach mother by phone but she would not answer, even though father could see from her “whats ap” account that she was there.

(5) The children have been negatively impacted by the mother’s “abandonment” of them.

(6) The children have always been together in his home. He has always been the parent who attends parent-teacher interviews, ensuring extra support when it is needed, and planning regular outings ands family time.

(7) The mother has had minimal involvement with the children’s education and health. Her lack of interest has led to D refusing to have contact with her.

(8) Father maintains that he strongly supports the mother’s relationship with the boys.

(9) Father continues to have concerns about the mother’s ability to care for K. He expressed these concerns to the OCL clinician who was conducting the investigation and report pursuant to section 112 Courts of Justice Act (CJA). The clinician reported these concerns to the CAS, who did not validate them.

(10) Despite the CAS findings, father is still concerned that mother will not feed K a healthy diet. He knows she gives him Frosted Flakes for breakfast; for example. K will often be wearing the same outfit for two days in a row.

(11) Father maintains that he will follow the recommendations of health care and other professionals, who are teaching or treating K.

(12) The father denies any violence in the home whatsoever.

(13) Father knows that K wants to see mother and he offers to maintain that parenting time. The current court order provides for alternate weekends and a midweek overnight.

[27] Two women gave evidence in support of the father. The essence of their evidence was that they are friends with cars that father borrows on a regular basis. They will drive father to Costco as he doesn’t like to shop locally. They hear the father encourage his boys to work hard at school. Neither woman knows the mother.

[28] The mother gave evidence, a summary of which includes the following:

(1) She has always been the primary caregiver of the children. She has also always been the primary wage earner. Mother works full time as a cleaner at one hotel and on alternate weekends, she works part time as a cleaner at a second hotel.

(2) In mother’s view, father only wanted to control the household, but when she returned to work after maternity leaves, she had to obtain day care or babysitting with the paternal grandmother, as father would not take on the daily task of caring for a young child.

(3) Mother cooked, cleaned, did the laundry, fed and dressed the boys, took the children to their doctor’s appointments and helped them with school. The children have been immunized but the parents agreed they would not be vaccinated against covid-19.

(4) Father told the mother he did not want a regular job. He bought and sold items online. For a brief period he worked for an uncle, detailing cars and also had some work selling television streaming services. He spent his time and money on himself and seeing friends.

(5) The parents first separated in September 2020, when mother found a text message on father’s phone from his girlfriend. Father grabbed her phone and broke it. She went to a shelter for a few weeks but returned home. The Covid-19 epidemic was widespread, and she was unemployed. She didn’t want to take the boys to a shelter. While she was in the shelter, she returned every day for several hours to be with her children.

(6) In October 2020, she returned to the home to assist the children with online schooling. Father was spending 3-4 days a week at his girlfriend’s home. The parents were essentially still living separate and apart.

(7) At the end of January 2022, mother left the home when father demanded she delete a friend’s name from her phone. Father told the boys that she was abandoning the children by choosing her boyfriend. Mother did not have a place to go to until her aunt and cousin took her in.

(8) From February of 2022 until June of 2022, father would allow the mother parenting time only in his apartment for one day every second week.

(9) Mother produced text messages from January until October of 2022 between D. and herself. The messages show her reaching out to D and D responding.

(10) On June 17, 2022, while mother was visiting her children in the home, the parents had an argument. The father grabbed the mother by her collar and pushed her against the wall, scratching her chest. D intervened. Mother was afraid and thereafter, refused to have visits with the boys in that home. Father refused to permit her to visit elsewhere. Mother produced several messages to confirm her requests and his responses.

(11) In September 2022, mother learned from the school that the children had not been attending their online classes. She wrote to father. Three such messages were produced. Father did not respond. In particular, K was absent from school 80 times from February 21, 2022 to April 6, 2023.

(12) In October of 2022, mother was accosted by the father in the parking lot of Costco. Father was furious that mother had phoned D. at home when father wasn’t there. Mother filed a complaint with the police for the alleged assault in June. The police went to the home and D was interviewed as a potential witness. D was angry with mother. He did not want to be named in a police occurrence report. Thereafter, he stopped speaking to her.

(13) From June 2022 until the court order of March 12, 2023, father refused to give mother any parenting time.

(14) In September 2023, K started grade 3, still online. Mother became concerned about K’s reading ability. He was assessed through the EQAO testing as below the provincial standard in reading and writing. Father has not been accustomed to assisting K with homework and does not appreciate K’s struggles.

(15) K is now attending school in person and has an Individual Education Plan (IEP).

(16) The parents agreed to an OCL investigation and report but the work was delayed for two months as father made a complaint about mother’s neglect of the children. The CAST investigated mother but did not validate the concern.

[29] The mother called the paternal grandmother to give evidence. She spoke very highly of mother and her care of the children. She was critical of her son for:

(1) Always having a girlfriend “on the side”,

(2) Never working nor helping with the children; she babysat for awhile when mother went back to work; and

(3) Slapping the mother, which she witnessed on one occasion.

[30] The parents have tried to navigate two other areas of concern for K. – eye glasses and orthotics:

(1) In parent teacher interviews in November of 2023, K’s teacher advised mother that he was having trouble seeing the whiteboard.

(2) The teacher confirmed with the OCL that she had told father in September and October about her concerns. Father did not tell mother. He testified that he did phone an optometrist but that particular one was on vacation.

(3) Mother obtained an optometrist appointment and took K on November 22, 2023. He was diagnosed with myopia and prescribed eyeglasses to be worn at all times. The doctor wanted to see him again in a year. Mother bought the glasses and sent father the details the following day. Father did not believe the child really needed glasses. Father started giving the child herbal drops. Father then relented and started giving the child the glasses for school only.

(4) The OCL and the CAS both advised father to have the child wear the glasses all the time and after the OCL disclosure meeting in April 2024, he did. Father then wanted a second opinion, which he obtained on May 7, 2024. When shown the two prescriptions, father said he thought they were the same. For father this became a seven month issue.

(5) K requires orthotics. Father took him to Vaughn for an assessment which cost $80. Mother then took him to be fitted and obtained the necessary orthotics in early October 2023. The cost was $500 and her insurance reimbursed her for $300. She sent father the details of this and the instructions for fitting his shoes. K’s feet will hurt if he walks to school without his orthotics. Father sends the child to school without them as they are difficult to fit into the shoe/boot. Now K has larger boots.

Evidence of the OCL – section 112, CJA

[31] Elizabeth Kitson conducted the investigation and report in this matter. She has a Masters in Social Work from Wilfred Laurier University and a PhD in Sociology from York University. Her first degree is from the University of Ghana. She met with each of the parents and K individually on two occasions and observed each parent with the children. She met with D once. She obtained information from collateral sources; such as Toronto Police Service, Catholic Children’s Aid Society (CCAS), schools, medical professionals for father and mother, optometrist for K, and K’s teacher. She met with the mother’s aunt and cousin, with whom she lives, and the paternal grandmother.

[32] The CCAS received the police report of the occurrence that led to the criminal charges against father in October 2023. Mother said that D had to intervene in order for mother to get away.

[33] Concerns were also expressed about K’s failure to log on for online school. Father explained he did not have a computer. The school then gave father a computer The parents were referred to community resources in order to reduce the risk of emotional harm to their children.

[34] Ms Kitson also made a referral to the Children’s Aid Society of Toronto (CAST) because of father’s allegations of neglect by mother. The issue of K’s eyeglasses arose. Father told the CAST that his drops were actually helping K. There were no concerns about mother’s meals for K. or her general care of the child. Father reported feeling unsupported in the family court process – he reported gender bias and favouritism toward the mother.

[35] Father said he did not trust mother and would need a second opinion regarding K’s eyesight. He then said that K could wear the glasses in school but not at home

[36] Father said he would sue the CCAS and any other system should K be harmed in the mother’s care.

[37] The parents were ordered by the court to download AppClose for the purpose of communicating about K. Father refused to use this application because he thought the mother would use it to bring further criminal charges against him. Father was very clear that he was not comfortable communicating with mother.

[38] Father reported to the OCL that he has a very close relationship with both D and K.

[39] Father advised the OCL he does not have any physical or mental health issues.

[40] Mother said that she used to have a close relationship with D but fears father is alienating him from her. K says that he would like more time with mother.

[41] Mother described father as physically abusive – in the past, she said he punched her in the face, slapped her and kicked her in the stomach. She also stated that he controlled their finances, although she earned the money. Father did not like mother visiting her family unless it was for the purpose of borrowing money.

[42] Father confirmed with the OCL that mother was responsible for the children’s medical appointments and mother was able to provide the doctor’s name and contact information. The children were regularly immunized but not for covid-19.

[43] The OCL was very concerned that father was not in favour of K wearing his eye glasses. He thought wearing the glasses could make the sight problem worse and was using herbal drops. Father confirmed with the OCL that K was not permitted to wear his glasses in father’s home.

[44] The eyeglass issue was reported to CCAS but the case was closed when mother purchased the glasses and father assured the worker in December 2023 that he would speak with a doctor about it. The high level of animosity and lack of communication between the parents was noted by the CCAS as a potential risk factor in meeting the child’s needs.

[45] By the time of the OCL’s second meeting with the father on March 9, 2024, he still maintained that reading glasses were not the solution for K’s eyesight.

[46] After the disclosure meeting with the OCL in April 2024, K began wearing his eyeglasses all the time.

[47] K. was interviewed by the OCL on January 25 and February 7, 2024. He said he didn’t know why his parents fight and didn’t know why his mother left. K loves both his parents. His father tells him to stay with him but K would like to live with his mother because she is patient. K shared that he used to cry in school when he couldn’t see the board. He was concerned because father told him that wearing the glasses could make him go blind.

[48] In conclusion, the OCL said she could not support the father having primary residence nor sole decision making responsibility for K. K. had been sad when he thought his mother had abandoned him. Now he sees his mother regularly and knows that is not true. He prefers to live with mother as she is patient and does not smack him “on the bum”.

[49] D. does not speak to his mother. He has been used as the facilitator of exchanges for K from the lobby when mother drops him off after visits. D was also interviewed by the police about his observations during the June, 2022 dispute between the parents. He was really taken by surprise by the police visit and has blamed mother for this intervention.

[50] The OCL reported that

(1) father has not gained any insight into the impact of D’s estrangement from mother and

(2) father’s refusal to improve communications with the mother is not in K’s best interests. Mother has shown a willingness to cooperate with the father, but without success.

[51] Father filed a 32 item Dispute of the OCL report. A supervisor from the OCL provided a detailed response to each item. Father’s dispute appeared to indicate that he was questioning the children about the case and the information given to the OCL.

[52] In the hearing, the OCL was cross-examined for several hours and remained very child focused and thoughtful in her responses. She was empathetic to the parents and recommended again that clinical supports and counselling are required to support the children.

Credibility of the Parties

[53] As between the two parents, father’s credibility is strained because:

(1) At one point he says he dealt with all the medical professionals but later admits that mother actually made all the appointments.

(2) He said he was the primary person to deal with K’s homework, but later blamed mother for K not reading at grade level.

(3) He wouldn’t let the child wear glasses as he wanted a second opinion, but he waited 7 months until May of 2024 to obtain one.

[54] Mother’s credibility increased because:

(1) She was able to admit mistakes made in the past; such as booking a month long trip to see family in St Lucia, when she forgot the Christmas period was already the subject of a final order. In fairness, it appeared as though father had forgotten also.

(2) She had to work to save her money to hire a lawyer. She and her lawyer sent a letter to father first so as to attempt an agreement. Father criticized her for not going to court to obtain parenting time. He went to court first.

(3) Mother was working two jobs in order to afford to pay her expenses and her lawyer. Despite that, she prioritized the payments for K’s glasses and orthotics.

[55] Where the evidence of the parents is inconsistent, the court prefers the evidence of the mother.

Findings

[56] The child’s needs:

Mother has been more attuned to the child’s needs. She responded immediately to the teacher’s concern about K’s eyesight. She responded to the child’s complaint about his feet. She ensured his education was appropriate to his needs. When mother had to go to a shelter during covid-19, she left the children with the father, to ensure stability for them.

[57] The child’s relationships:

Father proposes to secure the two brothers’ relationship with each other, by living in the same home.

Mother has been able to restore her close relationship with K through patience and increased parenting time. Mother has been compromised in her relationship with D, primarily due to father’s influence.

In the past and as part of father’s control over mother, father discouraged mother’s relationship with her extended family. Now that the maternal great aunt has offered mother a place in her home, K has developed close ties to his cousins and to mother’s extended family.

[58] Each parent’s role in supporting the child’s relationship with the other parent:

Father has been consistently unable to support mother’s relationship with the two children. Each request for visiting time had to be hard fought and then imbedded in a court order. Father initially insisted the visits be in his home. Father has repeated false allegations against the mother to the children. Father has used terms like “abandonment” to describe the separation.

Mother has struggled to maintain her relationships with the children. She has consistently supported the children’s relationship with the father. She has made many attempts to communicate with the father about the children.

[59] History of care:

The children have always lived with the father. Mother left the home out of fear and has put together her own plan for the children.

The evidence supports the mother’s view that she was always the primary caregiver while the parties lived together. She made the medical and dental appointments for the children, enrolled them in school, made the meals and did the laundry. When mother returned to work, she obtained daycare or the paternal grandmother assisted in caring for the children. Through all of these years, the father was on Ontario works and did some short periods of work for cash.

[60] Views of the child:

K would now like to live with his mother because she is patient and doesn’t physically discipline him.

[61] Cultural and spiritual upbringing:

Both parents are from the Caribbean. The maternal grandparents are still in St Lucia. Both parents agreed that the children would attend Catholic schools.

[62] Plans for the child’s care:

Father did not really speak to a plan, other than to maintain the status quo. In closing submissions, counsel for father suggests sharing the child on a week about basis, so that K can maintain his relationship with his brother and dad and also attend the same school. There was no evidence from the father about this plan.

Mother lives about 20 minutes drive away from father. She proposes to move K to the local catholic school. He would go to school with his cousins. This school also has the same program to support K. If K prefers, she could wait to change schools until a natural juncture in the school year. She proposes that father have time with K on alternate weekends, sharing vacations and school breaks. She also commits to attending counselling, which will be important for the renewal of her relationship with D.

The court finds that mother is more child focused.

[63] Ability and willingness to communicate and cooperate:

Father did not want to have any communications with the mother. He refused to respond to her messages or phone calls. The court ordered both parents to use AppClose. Mother registered and invited father to join. Father did not. At first he testified that he didn’t know how to download it and had to get his lawyer to do it for him. He then refused to use it as he was afraid of being charged again.

Mother made efforts to communicate with the father about the school attendance issues, the glasses for K, the orthotics for K, and the parenting time.

The parents have been unable to cooperate in their parenting, despite the advice of the CCAS and the OCL.

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

[64] Family violence:

Father denies grabbing mother and shoving her in the June 2022 dispute. He did however agree in the criminal court proceeding to attend an anger management program so that he could enter a peace bond and have his charge withdrawn.

Father did not deny the evidence of the paternal grandmother that she had seen him slap the mother.

From the time of the separation, father made every effort to limit the mother’s. contact with the children. He also told the children that she had abandoned them and stolen the family car, which was leased in her name.

Mother also testified that during the relationship he controlled when they saw extended family

The court finds that father has been violent towards the mother in the following ways:

(1) Physically by striking her;

(2) Emotionally by controlling her visits with the children;

(3) Financially by incurring debts on her credit card, promising to repay her and not doing so; and keeping her name from the lease; and

(4) by manipulating the children with false reports about the mother and making false reports to the CAS in order to gain a litigation advantage.

[65] Past Conduct:

Father has influenced the older son D to be very critical of the mother.

Father maintains he encouraged visiting and a relationship between mother and the children. The evidence suggests the contrary. He spoke negatively about mother’s availability for telephone calls and visits in front of the children. Father refused or limited visits with mother until court orders were made.

Father repeatedly criticized the mother in front of the children for “abandoning” them.

Father insisted on filing an affidavit from the 18 year old son, D. He also said that, despite counsel for the mother declining any cross-examination on the affidavit, D wanted to come to court anyway.

Father has not been able to encourage the older boy to see his mother or attend college. D is home with father. Both are unoccupied and on Ontario Works.

D has sworn an affidavit, commissioned by father’s counsel, which is very critical of mother’s care of K. The concerns are exactly the same as those raised by father with the OCL and investigated by the CCAS. They were not verified.

D graduated from high school in June of 2024. In the summer, he took a three day a week course through his local community centre partnership with a film company that ended in early September 2024. Father testified that D was offered a college program at Seneca but did not accept it. Father said D has turned down retail jobs in favour of looking for work in the film industry. Nothing has materialized and he is home unoccupied and collecting Ontario Works with his father.

Conclusion on Parenting Orders

[66] Conclusion on parenting orders:

(1) It is in K’s best interests to reside primarily with mother and for mother to have sole decision-making for him, for all of the above reasons, but particularly:

(a) Mother is more child focused than father. She prioritizes the children’s needs over her own.

(b) Father is bitter and cannot let go of the issues that led to separation.

(c) Father has used the children in his efforts to control the mother and to hurt her.

(d) Mother has demonstrated an ability to meet the medical, physical, and educational needs of K. She is better attuned to the children’s interests and willing to consult and follow the recommendations of professionals.

(e) Father refuses to communicate and cooperate on issues pertaining to the children.

(f) Mother has shown better parenting judgment.

[67] K should have as much parenting time with father as is in his best interests. K loves his father and his brother. A week about schedule is not in K’s best interests for these reasons:

(1) K has an IEP for school. Father did not realize the child was having difficulties with reading and writing although he was in the home full time during covid-19. Father could not get K to on line schooling. Although this has improved in 2024, the catalyst was probably the OCL report and this litigation.

(2) K requires daily educational support at home to complement the school program. Father does not know how to work with the school. One example was his inability to coordinate for K to have an ipad during the pandemic. Father always has an excuse but cannot problem solve.

(3) Father is not child focused. Week about gives father too much control over K, which will continue the emotional risk to K.

(4) The parents do not communicate well enough for this to work in K’s best interests. A shared parenting plan requires a high level of communication and cooperation, particularly given K’s age and needs.

(5) The risk to K becomes very clear when reading the affidavit of D – mother is bad, mother abandoned us, mother has a boyfriend, mother took the car so as to make things harder for us, mother doesn’t care about us, father does.

(6) D is not in school and is not working and not doing anything constructive. That could be K’s life too, if he spends too much time with father.

(7) Parenting time for father should include alternate weekends from Friday after school so that father can check in with K’s teacher until Sunday at 6 pm. when he can drop K at mother’s building.

Vacations

[68] Vacations:

Father should have liberal vacation time. Both parents agree to this.

During the trial, father agreed to change the Christmas plans, as set out in the court order of October 2023, such that mother can have the first week including Christmas Day and father the second week including New Year’s Eve and day.

Mother made a mistake and bought return flight tickets for she and K to visit the maternal family in St Lucia for one month over Christmas of this year from December 12 until January 12, 2025. There are two family weddings and a special birthday for her father, who K has never met. She broached this with father during the discussions at court in July 2024 and again through a letter from her counsel in August, 2024. Father did not respond.

Father testified that, in particular, he did not want K to miss the beginning of school in 2025. Father raises a good point and if he had provided this response sooner than in the trial, the court would have agreed. As a result, the court is prepared to grant mother her vacation in St Lucia, as planned, even though there will be some school missed. Mother has committed to working with K to do some of the school work online. In future, school should not be missed except in extraordinary circumstances.

As a result, father should have K for the full March break in 2025. Thereafter, March breaks will be shared with a transfer on the Wednesday.

Commencing in the summer of 2025, father can have K for the first two weeks of July and the first two weeks of August.

Documents and Travel

[69] Documents and Travel:

(1) Mother is better at the paperwork and registration part of life. Mother should obtain all the necessary government issued documents for K.

(2) The parties already agreed to either parent travelling outside of the country for up to 14 days without written consent. The parties should make every effort to avoid K missing school. If parenting time for father is missed, then makeup time should be offered.

Child Support and Section 7 Expenses

[70] The parties agree that mother should pay child support to father for both children until June of 2024, pursuant to the Child Support Guidelines (CSG)

Credits

[71] The amount of child support pursuant to the temporary order of June 8, 2023, was based on mother’s 2022 income of $51,308 and also allowed for a credit to mother of $310 a month until father returned the bell telephone equipment. According to the court order, father was to return the equipment by December 1, 2023 but he did not return it until March of 2024.

[72] After separation, father accumulated over $10,000 in charges against mother’s CIBC card to buy supplies for his online business. Father said he would repay mother but never did.

Mother’s Income for 2024

[73] Mother’s 2023 income was $66,747, because she worked a second job on alternate weekends and over time. Counsel for father argues that this income should be used for 2024.

[74] The most recent information we have from mother for 2024, however, is that she is not working the overtime and as many weekends because she has K with her for parenting time. Thus, her income for 2024 was calculated to be about $61,700.

[75] Commencing January 1, 2024, until March 1, 2024, inclusive, mother to be given a credit of $310 a month, and to pay net CSG for two children of $632. a month, based on 2024 income of $61,700

[76] Commencing April 1, 2024, mother to pay CSG for two children of $942. a month based on salary of $61,700. until June 30, 2024, inclusive.

Ongoing CSG for D

[77] As of July 1, 2024, D was not in school full time nor working full time or even part time. The evidence showed that he had been accepted to Seneca College for Sept 1, 2024 but did not go. He may go next September 2025, according to his father. D does not refer to any of his current activities or academic goals in his affidavit.

[78] The onus of establishing child support for D is on the father. See: Rebenchuk v. Rebenchuk, 2007 MBCA 22.

[79] In their paper, Child Support for Adult Children in Canada: When Does Childhood End?, 2023Docs 1212, Nicholas Bala and John Abrams, write at page 27:

Generally, if an adult child without disabilities ceases to attend school, and has only vague plans to return, the support obligation ends. However, if the child leaves school for a year or less, where there is a clear plan to return, the support obligation may be continued during that period, especially if the child is earning income and the child’s saving from that period may reduce later parental obligations. If the support obligation has ended and the period out of school is less than two years, the courts will usually allow the support obligation to be reinstated, and in some cases, reinstate support when a child has been out of school for up to three years.

[80] Some courts have continued support for an adult child when the child takes a gap year from attending school. See: Edwards v. Edwards, 2021 ONSC 1550; Hickling v. Coates, 2022 ONSC 5455; Leonard v. Leonard, 2019 ONSC 4848.

[81] Other courts have either terminated or suspended support for adult children when they stopped attending school full-time and have then revived it once they return to school. See: F. (R.L.) v. F. (S.) (1996), 1996 ONSC 8101, 26 R.F.L. (4th) 392 (Ontario General Division); MacLennan v. MacLennan, 2003 NSCA 9. Entitlement to support was suspended and revived after a 16-month school hiatus by this court in MacLean v. Taylor, 2014 ONCJ 449 and terminated and revived after a 14-month school hiatus in Stephenson v. Thomas, 2014 ONCJ 669. In Bishop v. McKinney, 2015 ONSC 5565, the father’s obligation to pay child support was suspended following the daughter’s graduation from high school but resumed following her enrollment at university a year and a half later. In R.J. v. T.J., 2021 ONCJ 137, the adult child had an 8-month hiatus from school. It was agreed that there should be no support payable for that period. Support was revived when there was a two-year gap for a 21-year-old child in Haley v. Haley, 2008 ONSC 2607, [2008] O.J. No. 293 (SCJ).

[82] Each fact situation must be analyzed carefully. Specifically, the time that the child was out of school must be considered. See: Lawless v. Asaro, 2003 ONSC 2164 (Ont. S.C.).

[83] Pursuant to subsection 3 (2) of the guidelines, the court also has the discretion to order a different amount of support if the guideline approach is inappropriate

(2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is,

(a) the amount determined by applying these guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child.

[84] In Rodriguez v DeSousa, 2014 ONCJ 675, the court found that approach number two was appropriate. It terminated support for the 14 months the child was out of school and revived it when the child returned to school. The adult child did not work during the gap year. She travelled extensively even though the parents had limited means. The court found it was unreasonable to expect the father, who opposed this plan, to financially support it.

[85] In this case, only counsel for father referred to D’s current situation as a gap year. Neither D nor his father referred to it as a gap year. As indicated above, D does not address his current work efforts or a return to school plan.

[86] D’s part time attendance at a program this past summer does not qualify as full time attendance at school. We have very little information about it, despite mother’s efforts.

[87] The court therefore orders that CSG for D terminates on June 30, 2024. Should D return to school at some point, the request for CSG and section 7 support can be revived through a Motion to Change.

[88] CSG for D, born […], 2006, is terminated effective June 30, 2024

[89] Commencing July 1, 2024 until October 31, 2024 mother to pay CSG for one child K, born […], 2015, of $572 a month based on income of $61,784.

[90] CSG for K, payable by mother, is terminated effective October 31, 2024.

Father’s Income

[91] Counsel for father argues that father should only have the amount of income that he reports to the Canada revenue Agency (CRA) used for the purpose of child support and section 7 expenses, because:

(1) He has never held a full time job.

(2) He is not looking for full time work.

(3) He considers himself an “entrepreneur”.

(4) He stayed home to help raise the children in the early years and then to accompany them to school and back.

[92] Having never held nor wanted a full time job does not answer the obligation of the father to support his children.

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

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

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

[94] 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. See Drygala v. Pauli, 2002 ONCA 41868, [2002] O.J. No. 3731(Ont. CA).

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

1. Is the party intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of reasonable educational or health needs?

3. If not, what income is appropriately imputed?

[96] The onus is on the mother to establish that the father is intentionally unemployed See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.).

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

[98] Father is very candid about never working and never seeking regular employment. He testified that he is healthy but provides no job search. The court therefore has no choice but to find him intentionally unemployed. See Filippetto v. Timpano, 2008 ONSC 3962, [2008] O.J. No. 417, (Ont. S.C.); T.L. v. D.S., 2019 ONCJ 809.

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

[100] As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, 2000 ONSC 22560, [2000] O.J. No. 453, (Ont. Fam. Ct.).

[101] Further, father has a positive obligation to proactively disclose information and evidence to support his position, including evidence about why income should not be imputed to him. He cannot simply rely on bald statements. See: M.A.B. v. M.G.C., 2022 ONSC 7207.

[102] The third question in Drygala v. Pauli, supra, is: “If there is no reasonable excuse for the payor’s under-employment, what income should properly be imputed in the circumstances?” The court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson, 2006 ONCA 26573.

[103] The father must take responsibility for his own inaction and expect to have income imputed to him for the benefit of his child.

[104] Father testified that he is healthy and has no physical or mental impairment that would negatively impact his ability to work. He has computer skills. He considers himself an “entrepreneur”.

[105] As a cautious approach, the court will impute income to the father at the equivalent of a minimum wage job.

Commencing November 1, 2024, father shall pay CSG table amount for one child, K, born on […], 2015, on imputed minimum wage income of $35,776 of $313. a month

Arrears and Credits

[106] Counsel for mother argues that any arrears of support should be fixed at zero. Mother has had difficulty meeting her financial commitments. She was forced to make a Consumer Proposal in order to cover debts, some of which were the father’s debts, which was approved in April 2024.

[107] By October 1, 2024, Family Responsibility Office (FRO) records indicate mother was in arrears of about $1,800. This amount of arrears will be increased when her income for 2024 is applied rather than the 2022 income used for the previous temporary CSG order. The amount owing will be somewhat offset by the termination of support for D on July 1, 2024 and the credit for mother covering the Bell bill for much longer than was agreed upon.

[108] The court is mindful that mother also covered all of the necessary expenses for the child; such as glasses and orthotics, net of her insurance refunds.

[109] As of October 31, 2024, the court would fix the arrears owing from mother as approximately $4,000. The debts owing by the father to the mother are approximately $10,000.

[110] In considering each parent’s financial responsibilities since the date of this application, overall fairness, and the opportunity to let each parent start a fresh chapter, the court fixes the arrears at zero as of October 31, 2024.

Commencing November 1, 2024, any arrears owing by mother to father, as at October 31, 2024, is fixed at zero.

Section 7 Going Forward

[111] Where available through employment, both parents should have benefits’ coverage for K. for medical and dental expenses.

[112] The parties agree that the cost of D’s school shoes and uniforms are eligible section 7 expenses.

[113] Mother’s share will be 63% and father’s share will be 37%. The amount will be net of any benefits’ coverage.

[114] Father and/or D may also apply next year if D returns to school and provides written proof of full time attendance at a recognized post secondary institution by July 30, 2025.

Commencing November 1, 2024, mother will pay 62% of the cost of K’s school shoes and uniforms a year and father will pay 38%.

Final Orders

Decision Making Responsibility

1. The mother, K.E. (the “Respondent mother”) shall have sole decision making responsibility of the parties’ child, K born on […], 2006, effective October 31, 2024

2. Primary residence of K shall be with the mother.

Parenting Time

4. The father N.K.M. (the “Applicant Father”) shall have parenting time with K commencing November 8, 2024, alternate weekends from Friday after school at 3:30pm; if no school then at 6:00 pm from the Respondent mother’s residence to Sunday 6:00 pm, dropping off at mother’s residence, provided:

a. The father ensures that K wears his eyeglasses all day;

b. The father follows K’s healthcare providers recommendations; and

c. The father downloads AppClose program to communicate regarding K only.

5. The father shall notify the Respondent mother in writing of any changes to his address or contact information immediately upon being aware of such change.

6. Commencing in 2025, mother shall have the first week of the Christmas school break and father the second week.

7. Father shall have the first two weeks of July and the first two weeks of August for summer vacation, or otherwise as agreed in writing.

8 The parties shall split the March break commencing in 2026, at 1 pm on the Wednesday. Father is to have the first half. For the March break in 2025, father shall have the whole week.

9. The parties shall not discuss any aspect of this litigation with the children.

10. The parties shall not denigrate the other parent to the children, directly or indirectly, by words or actions;

Child’s Passports, Documents and Travel

11. The mother shall be at liberty to renew and apply for the K’s passports and any other documents (health card, SIN card etc.) relating to K without notice to nor the consent or signature of the father.

The St Lucia Trip

12. The mother may travel with K between the dates December 12th, 2024, and January 12th, 2025, to St Lucia without the consent of the father. Detailed itinerary and contact information with proposed once a week telephone/video contact to be provided to father in writing 21 days before the travel.

General Travel

13. Generally, either party may travel outside of the country for up to 14 days without the consent of the other parent. A detailed itinerary with contact information and proposed telephone/video contact for the other parent to be provided 21 days before the travel.

14. The father and the mother may not unreasonably deny their consent for K’s travel.

15. Make-up parenting time with K may be arranged between the parties should the travel time booked impact the non-travelling parent’s parenting time with K.

Child Support

16. Commencing November 1, 2024, father shall pay CSG table amount for one child, K, born on […], 2015, on imputed minimum wage income of $35,776 of $313. a month

17. Commencing January 1, 2024, until March 31, 2024, inclusive, mother to be given a credit of $310 a month, and to pay net CSG for two children of $632. a month, based on 2024 income of $61,700.

18. Commencing April 1, 2024, mother to pay CSG for two children of $942. a month based on salary of $61,700. until June 30, 2024, inclusive.

19. CSG for D, born […], 2006, is terminated effective June 30, 2024

20. Commencing July 1, 2024 until October 31, 2024 mother to pay CSG for one child K, born […], 2015, of $572. a month based on income of $61,784.

21. CSG for K, payable by mother, is terminated effective October 31, 2024.

22. Effective October 31, 2024, any arrears for CSG or section 7, owing by mother to father, are fixed at zero.

23. Commencing November 1, 2024, section 7 expenses include medical and dental costs, net of the insurance coverage that the parents have through their employment. And K’s school shoes and uniforms. Mother will pay 62% father will pay 38%.

24. Any enforcement procedures taken by FRO shall be terminated as of the date of this Order.

25. Unless the support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. A support deduction order will issue.

26. The parties shall provide to each other and the Director of the Family Responsibility Office notification of any change in address or employment, including full particulars of the change, within ten (10) days of the change taking place

27. For as long as child support is to be paid, the Respondent Mother and the Applicant father shall provide updated income disclosure to the other each year within 30 days of the anniversary of this order in accordance with section 24.1 of the Child Support Guidelines.

Costs

[115] Counsel for mother may serve and file a maximum of 3 pages of submissions for costs, excluding her bill of costs and any written offers within two weeks of this decisions.

[116] Counsel for father may respond with a maximum of 3 pages of cost submissions, excluding her bill of costs and any written offers, within two weeks of receiving cost submissions from counsel for mother.

[117] Cost submissions are to be filed with the Trial Coordinator’s Office on the second floor.

Released: October 30, 2024 Signed: Justice Debra Paulseth