ONTARIO COURT OF JUSTICE

DATE: 2024 04 02 COURT FILE No.: Toronto D43523/23

BETWEEN:

M. E-S.

Applicant

— AND —

M. D-Q.

Respondent

Before: Justice Szandtner

Heard on: March 4, 5, 6 and 7, 2024 Reasons for Judgment released: April 2, 2024

Counsel: Riddhi Agarwal.................................................................................. counsel for the respondent M. E.-S............................................................................................................... on his own behalf

SZANDTNER J.:

Part One – Introduction

[1] This was a trial about the parenting and child support arrangements for the parties’ eight year old son T.E. and their four year old daughter S.E. The children currently live primarily with the applicant M.E-S. (the father) under a temporary order and spend three out of four weekends a month with the respondent M.D-Q. (the mother).

[2] The father seeks final orders for primary residence with him and sole decision-making authority for the children. He is prepared to consult with the mother before any major decision is made that affects the children’s health, education or general well-being provided that he is permitted to make the final decision in the event of a disagreement. He also seeks an order that neither party be permitted to travel with the children outside of Canada without the other party’s written consent or court order. He seeks the ability to obtain or to renew government documents for the children without the consent of the mother.

[3] The father seeks a final order that the mother have parenting time with the children on alternate weekends from Friday at 6:00 pm to Sunday at 6:00 pm. He will provide transportation for these visits. She will also have parenting time on Wednesday overnight if she can arrange the transportation. In the alternative to the mid-week overnight, she will have three consecutive weekends every second month. He seeks an order that the children reside with each party on a week-about basis during the months of July and August and share equally the Christmas and March school breaks.

[4] The father seeks to impute the mother’s annual income at the minimum wage based on $32,240.00 per year. He is seeking $491.00 per month in ongoing child support. He is not seeking retroactive child support.

[5] The mother is seeking a final order for decision-making that provides that the parties shall consult one another and give the other parent at least three days notice for any joint decision relating to the children’s health, education and general welfare. If the parties cannot agree, the mother seeks the final decision-making responsibility for the children.

[6] The mother is seeking an order that the children remain in the primary residence of the father until the beginning of the 2024 school summer break. For this period, the mother shall continue to have parenting time with the children every first, second and third weekend of each month from Friday at 5:00 pm until Sunday at 7:00 pm. The father will be responsible for transportation to and from the mother’s residence.

[7] The mother is seeking a final order that commencing September 2024, the children shall reside in her primary care and she shall register them in the school within her local Toronto jurisdiction. She seeks an order that the father’s parenting time to be every second and fourth weekend of the month from Friday pick up at school and drop off on Sunday at 7 pm. In addition, the father may exercise parenting time with the children every Tuesday and Thursday from 6:30 pm to 8:00 pm. The father shall be responsible for all transportation.

[8] The mother is also seeking a parenting order that the parties shall share parenting time on an alternate week basis from Sunday at 7 pm to Sunday at 7 pm for the school summer break. She seeks a shared Christmas schedule.

[9] The mother seeks a final order that the parties may travel with the children for vacation purposes for up to three weeks with the prior written consent of the non-travelling party, such consent to not be unreasonably withheld.

[10] The mother seeks a final order that she may possess, obtain and renew travel and government documents for the children with the prior written consent of the father. Such consent shall be provided within three days. If the father fails to provide consent, the mother may proceed without the consent. The mother shall provide the father with photocopies of all travel and government documents for the children.

[11] The mother seeks a final order for ongoing child support from the father commencing September 1, 2024 of $991.00 per month, based on an income of $65,000.00 annually. The parties shall share the extraordinary expenses of the children proportionate to their incomes.

[12] The parties each filed financial statements and affidavits as their direct evidence at trial. Each party provided oral evidence and were cross-examined. The father also called the children’s nanny Ms. H. and their family doctor Dr. Amoto. He also called a York children’s aid worker and two school employees as witnesses. The mother called family friend Ms. M. as her only witness. All of the witnesses gave evidence in chief and were cross-examined. The parties had the assistance of a Spanish interpreter.

[13] The issues before this court are as follows:

(1) What parenting order regarding primary residence is in the children’s best interests?

(2) What parenting orders regarding decision-making responsibility, parenting time, travel and other incidents of parenting are in the children’s best interests?

(3) When should the child support order start? How much child support should be paid? What contributions should be made to s.7 expenses?

Part Two – Background Facts

[14] The mother was born and raised in Mexico. The father was born in Guatemala but settled in Canada before the mother. The mother moved to Canada in the spring of 2015 to live with the father. She came to Canada as a visitor and the father sponsored her permanent residency.

[15] The parties were married in October of 2018. Their son T.E. was born in 2015 and their daughter S.E. was born in 2019. Throughout the parties’ cohabitation, the father’s son from a previous relationship, H.R., born in 1994, resided with them. H.R. has learning disabilities and is incapable of being self-supporting.

[16] The father is primarily employed as a truck driver. He has also painted houses and performed basic landscaping to earn income. The mother has not earned income in Canada. She volunteers and attends classes to improve her English.

[17] The parents separated in the fall of 2020. The father was charged with assault by the mother in October 2020. He left the family home and completed the PARS program. He returned to the family residence in November of 2021. The parents continued to live under the same roof while separated until August 25, 2022.

[18] The parties were divorced pursuant to a divorce order granted at the Superior Court of Justice on October 7, 2022. The divorce was based on separation of one year and no corollary issues were addressed in that proceeding.

[19] On January 3, 2023, the mother was charged with assaulting the father. As a result, the mother is prohibited from communicating with the father directly or indirectly except through an agreed upon third party for the purpose of visitation or exchange.

[20] The father commenced this Application on February 2, 2023 seeking an order for primary care of and sole decision-making for the children. He also sought an order for child support from the mother based on an imputed income of $32,240.00.

[21] On March 27, 2023, the mother filed an Answer/Claim seeking an order that the children have their primary residence with her and that she be granted sole decision-making responsibility for them. She also sought an order for child support based on the father’s income.

[22] On November 7, 2023, Justice Sager heard two urgent motions. The father had moved with the children to Schomberg in August and enrolled them in school in that jurisdiction in September of 2023. He brought a motion for an order permitting him to maintain the permanent residence of the children in Schomberg, Ontario. The mother brought a motion that the residence of the children should be returned no later than November 15, 2023 to the City of Toronto and to her primary care.

[23] On November 15, 2023, Justice Sager made a temporary order permitting the father to maintain the children’s primary residence in Schomberg Ontario pending the trial of the matter. The mother’s temporary parenting time to the children was ordered to be the first three full weekends of every month from Friday at 5:00 pm to Sunday at 7:00 pm. The father was responsible for the transportation.

Part Three – Primary Residence and Decision-Making

3.1 The father’s position and evidence

[24] The father seeks to maintain the primary residence of the children with him. He requests a final order for primary residence and a final order approving his relocation of the children from Toronto to Schomberg, Ontario.

[25] The father’s evidence is that from the time of the children’s births to the pandemic he was an involved parent who was working full time as the family breadwinner as a truck driver. The only exception during this period was from October 2016 to November 2017 when the mother and their son were residing in Mexico and he remained in Toronto. When the pandemic commenced in March of 2020 he lost his job and was involved in the joint care of the two children on a full time basis.

[26] The father testified that in October of 2020, the mother contacted the police and made false allegations that he had assaulted her. He testified that he left the family home until December 2020 following his completion of a PARS program.

[27] Under cross-examination he admitted that he was subject to a condition that he not have direct or indirect contact with the mother. He admitted that she had full responsibility for the children from October 2020 until November 21, 2021 when he returned to the home. He saw the children for day visits on the weekends during this year.

[28] The father testified that the family cohabitation ended on August 26, 2022 when the mother abruptly left the home with the children without notice to him. His evidence is that while the mother initially refused to provide a forwarding address, arrangements were made for the children to see him on a regular basis.

[29] Under cross-examination the father admitted that the cohabitation ended due to the family’s eviction from their friend’s apartment. The family was given three months notice by their friends. He agreed that he resided in his truck with his eldest son from the eviction until November of 2022.

[30] The father testified that on November 18, 2022 the mother asked him to take both children into his care after their son refused to go to her home. Under cross-examination the father admitted that he lost his job on November 16, 2022 and proceeded to apply for welfare and the child tax benefit. He claimed that both the children were in his care at the time of his application for benefits.

[31] The father’s evidence is that on January 1, 2023 he took both children to see the mother. He testified that the son refused to visit with his mother and only the daughter was dropped off. His evidence is that on January 3, 2023 he returned with his son to pick up the daughter. The father testified that the mother tried to take their son into her care by force. She lost control and struck the father in the face. He contacted police and the mother was charged with assault. The mother signed an undertaking not to communicate with the father directly or indirectly except through a third party to arrange visitation.

[32] After this January incident the father returned to his home with their daughter. His evidence is that the mother refused to allow him access to their son except by video and telephone. He commenced the within Application on January 18, 2023.

[33] His evidence is that his son came into his care on January 23, 2023 and has been in his primary care since that time.

[34] Under cross-examination he admitted that he picked his son up from school against the mother’s wishes on January 23, 2023 and did not return him to her. Following this unplanned removal, he admitted that he ensured that the children had no further contact with their mother. He agreed that the mother was cut off completely from their daughter for one month and a few days. This was the first lengthy separation of the mother and daughter in the child’s life.

[35] On February 14, 2023 the parents signed a parenting agreement with the assistance of counsel granting the father temporary primary residence of both children.

[36] In June of 2023, the father was residing in a bachelor apartment with his older son H.E. and the two children. He was in receipt of social assistance. The apartment had a bedbug infestation.

[37] Under cross-examination the father admitted that he spent a weekend at a hotel in Vaughan while the apartment was being sprayed with chemicals. He did not allow the children to go to their mother’s apartment.

[38] The father testified that after the infestation he began searching for alternate accommodation in Toronto for himself and the three children. He was unable to secure new accommodation due to his reliance on Ontario Works, his poor credit rating and lack of funds for first and last month’s rent.

[39] The father’s evidence is that in early July 2023, a friend offered him full time work at his company as a driver at a rate of $25.00 per hour. His friend also advised that his brother had a large house in Schomberg that the father could rent for $2,500.00 inclusive of utilities. No deposit was required. The father’s new employer also understood his need for flexibility to take care of the children.

[40] On August 1, 2023 the father and the children moved into the home in Schomberg. It is a 30 minute drive away from his previous apartment. It is a five bedroom house with a finished basement and each child has his or her own bedroom.

[41] Under cross-examination, the father admitted the mother did not consent to the move and communicated her position to him through counsel on July 13, 2023. He agreed that he had 20 days to address the matter before the court but did not take steps to do so. He admitted that he enrolled the children in school in Schomberg without the mother’s consent.

[42] The relocation was addressed on a temporary basis by a motion after the move before Justice Sager on November 7, 2023. The relocation was permitted on a temporary basis pending trial.

[43] The father’s evidence is that the children’s school is located five minutes from the residence and the children have access to school bus transit. The children’s report cards reflect good attendance and performance at the school.

[44] The father called two witnesses from the school, Jessica Preskow, the hearing resource teacher and Tracy Haesler, the Individual Placement and Review Committee (IPRC) coordinator. They testified that T.E.’s hearing disability is being successfully accommodated through both technology and teacher support at the Schomberg school.

[45] The father testified that he currently works as a truck driver. He works from 7 am to 5 pm. He has had to work until 7 pm twice in 2024.

[46] The father called the children’s nanny Ms. H. as a witness at trial. She testified that she arrived in Toronto in February 2023 as a visitor. She is Spanish speaking. She was hired by the father on September 17, 2023 as a live-in nanny during the week days. The father pays her $500.00 in cash each week. She resides in the home from Monday to Friday. The father leaves for work before the children wake up. She is responsible for waking them, feeding them breakfast and dressing them for school. The children arrive home at 3:20 pm off the school bus. Ms. H. cares for the children until the father returns from work at 5:30 pm. The children bathe when they return from school. She assists the younger daughter but not the son. The children do their homework before dinner. The father is not present for homework but connects with the children through a video call. She keeps the home clean and tidy and makes dinner for the family.

[47] Under cross-examination the father admitted that Ms. H. was the third nanny that he had hired to care for the children. He hired Rosalinda in February of 2023, Maria in September of 2023 and finally Ms. H. on September 17, 2023. He did not consult with the mother about the hiring of the nannies. He found them through friends. He trusted his friends’ referrals and did not conduct background checks. He admitted that the nannies did not have work permits. He admitted that he did not permit communication between the mother and the current nanny. He further admitted that he did not alert the mother to the changes in the nannies.

[48] Under cross-examination, Ms. H. confirmed that she has a grade three education and cannot speak or understand English. She is aware that she is not the first nanny hired by the father for the care of the children. She agreed that the house is located within a rural neighbourhood. There are no stores within walking distance. Ms. H. does not drive. Ms. H. has the father’s contact information in case of emergency. She has no contact information for the mother. She has asked the father for the mother’s telephone number but the father would not provide it to her. Ms. H. follows the father’s instructions with respect to medical care for the children. She gave S.E. her iron pills until the prescription ran out. She was aware of a cream for T.E. for an infection but this was applied by the father. She does not know how these health issues arose. She is currently in Canada on an extended visitor visa which expires in April 2024. The father testified that Ms. H.’s visa was expiring in April of 2024 but reported that he was in touch with a law firm to begin the process of legalizing her status.

[49] The father testified that he is hoping to enrol the children in extra-curricular activities at the local community centre. He has not done so to date due to their parenting time in Toronto with the mother on most weekends. The programs in the area are not Spanish speaking. The father is not planning to change the children’s medical professionals in Toronto.

[50] The father called the children’s doctor Dr. Amoto as his witness at trial. The children have been in the care of Dr. Amoto since their births. The doctor testified that T.E. was born with a congenital defect in his left ear. He referred T.E. to the Hospital for Sick Children. He reported that the children have been brought in regularly for their vaccinations and appointments. They have been brought in by both parents over the years, but more often the mother due to the father’s work obligations. Dr. Amoto had appointments available on the weekends early in his practice, but he is no longer available for weekend appointments.

[51] The father called York Children’s Aid Society (York CAS) worker Augustine Sigesh as his witness at trial. Mr. Sigesh testified that the family was transferred to York in November 2023 following a report from the mother with respect to concerns about S.E. and T.E. Mr. Sigesh was assigned as the ongoing child protection worker on the case. He testified that the intake worker on the file verified two protection concerns. The first was inadequate caregiver response (by father) to physical health issues of the children by neglecting proper hygiene for the son. The second was verified emotional harm to the children from the ongoing conflict related to parental separation. Inadequate supervision of the children was not verified.

[52] A family file was opened on the case for ongoing support and service from the York CAS. Mr. Sigesh’s first meetings with the parents and children were in January 2024. The children have not reported any concerns to Mr. Sigesh during their private meetings. Mr. Sigesh had made a number of recommendations which included the following: the involvement of both parents in decision-making, parents not including the children in conversations about litigation, using a third party for transitions, using a tool like Family Wizard and participating in the Triple P parenting program.

3.2 The mother’s position and evidence

[53] The mother is seeking a return of the children to her primary residence in Toronto. She currently resides in a subsidized two-bedroom apartment and can accommodate them. If the court grants the father primary residence she opposes their relocation to Schomberg and seeks their return to Toronto.

[54] The mother testified that the father controlled and dominated her throughout their marriage. He was responsible for the family finances and she took care of the household at his request. She describes being constantly subjected to verbal, physical and emotional abuse by the father. She had no support from extended family in Toronto and lacked English skills and was therefore vulnerable to the father’s control.

[55] The mother’s evidence is that throughout the relationship, the father used her lack of English fluency to his advantage. During arguments, he would threaten to withdraw his spousal application with immigration. The mother was scared that she would be separated from her children if that were to occur.

[56] The mother’s evidence is that she has been the children’s primary caregiver since their birth. She was responsible for preparing their meals, dressing them, daily activities, medical appointments, bathing them and preparing them for bed. During the pre-COVID period, the father worked as a truck driver and was often on the road for multiple days at a time. She had sole responsibility for the children during these absences.

[57] The mother testified that the parties’ son T.E. was born with a condition called Microtia-Atresia that impacted his hearing. He is deaf in his left ear. Since his birth, the mother has worked to arrange the best medical care for him. She connected him from March 2016 to September 2019 to the Hospital for Sick Children and secured Assistance for Children with Severe Disabilities benefits. This program funded T.E.’s hearing aid. The mother took him to the fitting appointment and received instructions from the specialist. When the children were residing in Toronto, the mother attended her son’s school every day to help him to wear the hearing aid and explained to the staff and the principal how the hearing aid works.

[58] The mother provided evidence from the George Hull EarlyOn Centre which reflected her attendance at drop-in programs with T.E. from March to October 2016 and from February 2018 to July 2019. The Centre confirmed that T.E. was enrolled in their school readiness program in July of 2019 which included the mother’s participation. On June 26, 2018, at the request of the mother they assisted her in filling out a screening checklist and contacting Toronto Public Health to register for Speech and Language Services. The staff at the Centre also supported the mother when she became pregnant with her daughter in enrolling in the pre-natal program at the Rexdale Community Health Centre. In 2021, the mother attended the Centre’s virtual programs with both children. She also attended in person programs at their main site once they reopened from April 2021 to 2022.

[59] The father’s cross-examination on this evidence revealed that he did not know about the mother’s participation in these programs before the trial.

[60] The mother testified that the parties separated in October of 2020 when the father was charged with assaulting her. After the father completed the PARS program, they remained living together as a family following their separation as a couple. He returned to the family apartment in November of 2021. She testified that they wanted to continue to parent the children together.

[61] The mother’s evidence is that until August of 2022 the family was renting a two-bedroom apartment from their family friend. In May of 2022, the family friend advised them that they needed the apartment for personal use and that the parties needed to move out in three months.

[62] As a result, in August of 2022, the mother moved in with a friend on a temporary basis with the understanding that the father would secure alternate accommodation for the whole family to continue residing together. To the mother’s surprise, the father advised her at the last minute that he was not moving out and would continue to live in the apartment.

[63] The mother testified that in August of 2022, the mother applied for subsidized housing where she could live with the children. When the father was evicted from the friend’s apartment, he and his eldest son H.E. started living in his truck from August 27, 2022 until October 2022. The children resided in their mother’s primary care. During this period, the father’s parenting time was sporadic. He would come to her home without notice and threaten to separate her from the children.

[64] The mother said that in November of 2022, the father informed her that he had secured a bachelor apartment. The mother testified that due to constant intimidation by the father, she agreed to a shared parenting schedule with the father on an alternate week basis.

[65] The mother testified as to her account of the events of January 2023. On the night of January 1, 2023, the father brought the daughter to the mother. They had agreed that on January 2, 2023, the father would bring the son T.E. to the mother and that he would stay the rest of the week with the mother and daughter. Against the mother’s wishes and contrary to their agreement, the father succeeded in taking their daughter home with him on that date but not their son.

[66] The mother’s evidence is that after the father left the mother’s home he sent her a message that if she did not return their son to his care he would call the police and accuse her of assault. When the mother would not return their son, he called the police and accused her of assaulting him. The mother denies that any assault occurred. She was criminally charged and subject to a no-contact order.

[67] The mother was concerned that the father would pick up their son from school and not return him to her care. She did not send the son to school from January 9 to January 23, 2023. On January 23, 2023, the father sent a threatening message to her from a third party to inform her that he would be picking their son up from school and if she attended the school she would get arrested due to the no contact order.

[68] The mother testified that the father proceeded to take both children into his care. He refused to let the mother meet or communicate with them. The mother had no parenting time with S.E. from January 3 to February 11, 2023 and no parenting time with T.E. from January 24, 2023. At the end of this period the mother testified that she was desperate to see the children.

[69] The father commenced this Application seeking sole decision-making and primary residency on January 18, 2023. The mother testified that she agreed to the father’s primary residency in the consent she signed on February 14, 2023 out of a feeling of desperation after the period of total separation from her children.

[70] In March of 2023, the mother was approved for subsidized housing and moved into a two bedroom unit.

[71] At a June 9, 2023 case conference, the parties agreed to a temporary order for the father to have primary residence of the children. The mother’s parenting time with the children was alternate weekends and Wednesdays overnight.

[72] The mother’s evidence is that on July 11, 2023, the father expressed his intention to relocate with the children to Schomberg effective August 1, 2023 through his counsel. This notice was shorter than the 60 days required by statute. The mother objected to the move in writing. She could not be involved in the children’s school or exercise her mid-week parenting time if he relocated with the children as proposed.

[73] The father ignored the mother’s objection and proceeded with the move. He unilaterally enrolled the children in school in Schomberg. He dropped the mother’s last name from their surname on the school registration forms. Neither child had any connection to Schomberg, Ontario. Until the father’s unilateral move they have always lived in Toronto.

[74] The mother testified that the move to Schomberg disrupted the mother’s parenting time as she lost her mid-week parenting time with the children as she did not have a vehicle and could not transport the children. There was no public transit link available.

[75] At an urgent motion before Justice Sager on November 7, 2023, the court made a temporary order granting the children primary residence with the father in Schomberg pending trial. The mother’s temporary parenting time to the children was ordered to be the first three full weekends of every month from Friday at 5:00 pm to Sunday at 7:00 pm. The father was responsible for the transportation.

[76] The mother’s evidence is that the children’s physical health has been neglected during their time in their father’s primary care. She testified that in June of 2023, the father had a serious bedbug infestation in his bachelor apartment. She offered to keep the children in her care while the father’s apartment was treated. The father refused. As a result their daughter suffered severe bed bug bites. The mother took her daughter in to the walk-in clinic in July of 2023 for treatment.

[77] The mother testified that in August 2023 when their son T.E. arrived for his parenting time with the mother, she noticed severe rashes on his private parts that had been neglected by the father. She immediately took him to the walk-in clinic and he was prescribed creams to cure the rash. She advised the father of the situation. On September 28, 2023, T.E. was rushed to hospital as he had developed an infection in the same area. The treatment was medication and proper hygiene.

[78] The final health issue identified by the mother in her evidence was the daughter’s S.E.’s iron deficiency. This was diagnosed when the mother brought S.E. in for testing at a walk-in clinic in February 2023. Iron pills were prescribed.

[79] The mother’s position is that these health issues are not only arising in the father’s primary care, but that his secondary care provider, the nanny Ms. H. is not addressing them appropriately. Ms. H.’s evidence is that the children shower when they return from school, but that she does not supervise the older son. She testified that she gave S.E. the iron pills (which the mother had sent) but the pills from the father’s home are not being administered daily. Ms. H. testified that the father has not given her the mother’s telephone contact information and that she only communicates with him.

[80] The mother’s position is also that the temporary care of the nanny Ms. H. does not support the children’s long term psychological well-being. Ms. H.’s evidence is that she is in Canada under a visitor visa which will expire in April of 2024. The father intends to take steps to stabilize her status but has not yet done so. She is the third nanny employed by the father over the course of a year.

[81] The mother’s evidence is that T.E. displayed anxious behaviour following the separation. He started biting his clothes and removing buttons from his clothes and jackets. She discussed this with the father. She located counselling for him, but the father refused to consent to the service.

[82] The mother’s current plan is for the children to return to their previous school. They would access Spanish speaking supports at the George Hull Centre. They have friends in school who speak Spanish. The mother has friends from her church community who speak Spanish.

3.3 Legal Considerations

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

[84] 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.

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

Factors

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

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

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

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

(d) the history of care of the child;

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

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

(f) 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 person 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.

[86] Sections 39.3 and 39.4 of the Act set out additional considerations when a parent seeks to relocate a child. The court has considered them.

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

[88] The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.

[89] The court must pay close attention to each parent’s willingness to facilitate a relationship with the other parent. 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.

[90] Subsection 33.1 (2) of the Act addresses the importance of the parties protecting the children from conflict. A party’s failure to protect a child from conflict may be an important consideration in granting primary residence or decision-making responsibility to the other parent. See: Dayboll v. Binag, 2022 ONSC 6510; I.A. v. I.G., 2023 ONCJ 523.

3.4 Analysis

[91] The court finds that it is in the children’s best interests that they are placed in the primary care of the mother based on the following findings of fact:

a) The relationship with the parties involved a power imbalance. This imbalance was identified by the mother. It favoured the father who spoke English and sponsored the mother to immigrate to Canada. The mother has no extended family in Canada. Her English skills are weak. The father was the breadwinner for the family. The court finds as a fact that the father had more power in the Canadian context and that the mother was vulnerable due to her fear of being separated from her children.

b) The parties’ son T.E. has special needs due to a congenital defect that causes deafness in one ear. He also suffers from anxiety. He requires assistance with his personal hygiene. He has suffered from an infection linked to this issue. The parties’ daughter S.E. suffers from an iron deficiency. Both children (8 and 4 years of age) require consistent before and after school care including assistance with school preparation, homework and meals.

c) The mother was the primary caregiver for the children from their birth until their transition to the father’s primary residence in January 2023. The parents agree that the mother was the parent with sole responsibility for the home and care of the children from the children’s births (in 2015 and 2019) until the start of the pandemic when the father lost his job in March of 2020. The father was a truck driver and breadwinner and she was responsible for the home and care of the children. Due to an assault charge against the father, he was not residing in the family home from October 2020 until he returned in November 2021. Moreover, the father and his eldest adult son resided apart from the family from August 22, 2022 to the beginning of January 2023. The most generous estimation of the father’s shared primary caregiving role prior to his commencement of this Application is a period of nine months out of an eight year period.

d) In spite of the language barrier the mother was extremely resourceful in her efforts to secure the appropriate supports for her son’s hearing disability and for herself as a parent. She followed up with the Hospital for Sick Children and secured the funding required for T.E.’s hearing aid. She was a proactive parent when he enrolled in school to ensure that his accommodation was effective. She made extensive use of the Spanish speaking services available to parents through the George Hull EarlyOn program.

e) The mother continued her focus on the children’s needs following their transition to their father’s primary care and relocation to Schomberg. As the children’s doctor (Dr. Amoto) was not available on her weekends, she began to use a walk-in clinic to address the emerging medical issues she identified. She alerted the father to these issues and ensured that any relevant prescription medication was sent home with the children for use during the week in Schomberg.

f) Following the parties’ separation and prior to the within Application the mother repeatedly agreed to arrangements that maintained the father’s relationship with the children. For example, she agreed to remain in the same residence in spite of the parties’ separation as a couple in November of 2021. She had agreed to find a family residence following the end of their lease at their friends’ apartment in August of 2022. She agreed to a shared schedule when the father secured his bachelor apartment in November 2022.

g) Following the parties’ separation the father repeatedly took unilateral steps that compromised and briefly severed the mother’s relationship with the children. When the lease at the friends’ apartment expired in August of 2022, he did not take steps to secure a family residence that included the mother. He reneged on the parties’ informal parenting agreement in January of 2023 and took steps to bring both children into his sole care against the mother’s wishes. This resulted in a confrontation between the parties. He responded to the confrontation by filing assault charges against the mother. He then took immediate steps to bring both children into his sole care by picking his son up from school and abruptly terminating all of mother’s contact with them. He retained counsel and brought this Application to formalize this arrangement when the mother was desperate for any contact with her children. He refused to allow the children to stay with their mother in June 2023 during a serious bedbug infestation and fumigation. Finally, he unilaterally moved the children to Schomberg, Ontario without proper notice to the mother, a court order or her consent. Once in Schomberg he failed to connect the mother to the nanny who was responsible for caring for the children after school.

h) The mother’s plan is to enrol the children in the schools in Toronto in September 2024 that they attended prior to the move to Schomberg in August 2023. Her son will be in Grade 4 and resume the hearing supports that were previously set up for him. Her daughter will be in senior kindergarten. Her children will have the benefit of her care before and after school. The children will have the benefit of Spanish speaking friends and community. They can access Spanish speaking services through the George Hull Centre. They will continue to be cared for by their physician Dr. Amoto.

i) The father’s plan is to remain in Schomberg with the children. The school in Schomberg has met his son’s hearing needs and both children are attending consistently and performing well. However, the father’s plan lacks stability. His afterschool plan involves a live-in nanny whose status is uncertain. She is the third nanny to fill this role since February 2023. Her visitor’s visa expires in April 2024. The expense of this before and after school care ($500.00 per week) is also very high for this family given their means.

j) The court finds that the quality of the father’s care of the children is a concern. He has resisted securing counselling support for his son’s anxiety. His neglectful oversight of his son’s hygiene resulted in a rash and an infection. This was verified by the York CAS. His daughter is iron deficient. His working day prevents him from being available to provide the children direct care prior to school and after school.

[92] Neither parent has sought an order for joint decision-making. Each seeks sole responsibility for decision-making with the mother including a duty to consult with the father prior to major decisions.

[93] The court makes an order that the mother is to have sole decision-making with a duty to consult with the father. If the parties are unable to agree, she will make the final decision.

[94] The court makes this final order based on the following findings of fact:

a) Both parents clearly love the children and place a high value on their relationship with them. They each want to maximize their time with the children.

b) The mother is currently bound by a no-contact order that impedes the flow of information and the communication between the parties.

c) The parties lack the rapport, level of cooperation and mutual respect that joint decision-making would require.

d) The mother’s pattern of decision-making behaviour is child focused. She is conscientious and vigilant with respect to the children’s current and future needs. She has been this way since their birth. She has accessed community and medical supports effectively. She has been involved with the hospital and school to ensure T.E.’s hearing issue is properly accommodated. Even after the children’s move to Schomberg, she is observant during her time with them and immediately follows up when she sees an issue to be addressed. She has made use of walk-in clinics during her time on the weekend to address their health issues. She took on the responsibility of securing two units of all prescribed medication to ensure that one is sent with the children when they return to the father. She also keeps track of the need for refills.

e) The father has taken full responsibility for the financial support for the family. His efforts in this regard are crucial to the well-being of the children and the mother. However, the father’s pattern of decision-making over the past year has been problematic. It has not reflected any respect for the mother’s opinion or for her relationship with the children. The father completely blocked the mother from any time with the children in January of 2023. He refused to allow the children to reside with their mother to escape a bedbug infestation and remediation in his apartment in June of 2023. He relocated the children north of the city without the mother’s consent in August of 2023. He hired a series of caregivers for the children without her input and prevented her from communicating with the current caregiver. The court finds that these decisions form a pattern that is focused on his consolidating and maintaining control of the residence and primary care of the children. They are not focused on the best interests of the children.

[95] If the court had found that a primary residence with the father was in their best interests, it would have to then consider if the relocation to Schomberg should be allowed. However, given that the children will be returning to Toronto, the father’s Schomberg residence is only relevant with respect to the logistics of the father’s parenting time.

Part Four – Parenting Time

4.1 Legal considerations

[96] In determining parenting time, the court must consider the relevant best interests considerations contained in subsections 24(2) to (7) of the Act, as described in Part 4.1 above.

[97] Subsection 24(6) of the Act states that in allocating parenting time, the court shall give effect to the principle that the child should have as much time with each parent as is consistent with the best interests of the child.

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

4.2 Positions of the parties

[99] The mother seeks an order that commencing September 2024, the children shall reside primarily with her and she shall register them in the school within her local jurisdiction. She seeks an order that the father’s parenting time to be every second and fourth weekend of the month from Friday pick up at school and drop off on Sunday at 7 pm. In addition, the father may exercise parenting time with the children every Tuesday and Thursday from 6:30 pm to 8:00 pm. The father shall be responsible for transportation.

[100] The mother is seeking a parenting order that the parties shall share parenting time on an alternate week basis from Sunday at 7 pm to Sunday at 7 pm for the summer break. She also seeks a shared Christmas schedule.

[101] The father has not specified the parenting time he would seek if the children were returned to the mother’s primary residence. He has testified that his plan is to remain in Schomberg.

4.3 Analysis

[102] The children in this case are four and eight years of age. They will be residing in the primary care of their mother in Toronto and enrolled in school in that jurisdiction. Ensuring their stability and consistent school attendance is a priority. They are also approaching the age at which they will be interested in enrolling in extra-curricular activities. Homework completion will also gradually become an issue. Their ability to participate and complete their tasks must be factored into their schedule.

[103] Their parents are not currently residing in the same city and car transport is required between the homes. The family has the benefit of the father’s vehicle and ability to transport them.

[104] The father works full time as a truck driver during the week. He is fully available to care for the children on the weekends. He advises that the Schomberg community has a community centre which has activities that would be appropriate for the children.

[105] The court finds that it is in the children’s best interests to have parenting time with the father on three out of four weekends each month. He will pick them up at 5:00 pm on Friday and return them to the mother’s home at 7:00 pm on Sunday evening or at other times as agreed. The father will also have mid-week parenting time from 6:00 pm to 8:00 pm on Wednesday evenings. He will be responsible for their transportation for same. He will also have virtual contact with the children weeknights for a total of 30 minutes on days they are with their mother at an appropriate time in light of their bedtimes.

[106] This schedule will permit the father to maintain his close relationship with the children. He will be able to connect them to extra-curricular activities in his community on the weekends. The children will also have a sense of stability and routine during the school week at the mother’s residence.

[107] The court finds that it is also in the child’s best interests to grant both parents extended holiday time with the children. The parents both propose to share the summer weeks equally.

Part Five – Incidents of Parenting (Travel and Documents)

5.1 Positions of the parties

[108] The father seeks an order that neither party is permitted to travel with the children outside of Canada without the other party’s written consent or court order. He seeks the ability to obtain or to renew government documents for the children without the consent of the mother.

[109] The mother seeks an order that the parties may travel with the children for vacation purposes for up to three weeks with the prior written consent of the non-travelling party, such consent shall not be unreasonably withheld.

[110] The mother seeks an order that she may possess, obtain and renew travel and government documents for the children with the prior written consent of the father. Such consent shall be provided within three days. If the father fails to provide consent, the mother may proceed without the consent. The mother shall provide the father with photocopies of all travel and government documents for the children.

5.2 Analysis

[111] The mother’s evidence has reflected her strong attention to detail and an organized focus on the children’s needs. Primary residence has been ordered to be with her. She is the sole decision-maker for the children. She is the practical choice for the parent to ensure that the children’s official documents are secured and renewed appropriately. The court orders that she may obtain and renew the documents without the father’s consent and shall provide him with photocopies of all official documents for the children.

[112] The children have no extended family in Canada. The parties testified that contact with their extended families will require international travel. This is an important issue for this family and the cultural development of these children.

[113] The court will make a final order that provides for an extended trip (up to three weeks) to enable the children to connect with their extended family outside of Canada. Written consent of the other party is required and not to be unreasonably withheld. Clear parameters will be set out in the final travel order to ensure that notice of the trip, the details of the trip and means of contacting the children on the trip are provided.

Part Six – Child support

6.1 Positions of the parties

[114] The mother’s position at trial was that commencing September 24, 2024 the father shall pay ongoing child support to her for the children the amount of $991.00 monthly, based on his disclosed income of $65,000.00 annually.

[115] The mother seeks to share the extraordinary expenses of the children, as defined in section seven of the Child Support Guidelines, proportionate to the parties’ incomes. She filed a financial statement that reports an annual income of $6524.64 per year from Ontario Works. Her position at trial is that an appropriate income imputation to her is of $18,000.00 per year, representing a part-time minimum wage salary. She relies on her evidence that she is currently enrolled in school to improve her English skills and has only volunteer experience in Canada.

[116] The father seeks an order for child support from the mother based on an imputed income of $32,240.00. He seeks ongoing child support and not retroactive child support.

[117] The father filed a financial statement sworn February 15, 2024 as his evidence at trial. In that document he swears that he is currently employed by a construction company and earns a monthly gross employment income of $7256.00 per month. He also filed a paystub to reflect this employment which reflects a gross salary of $1878.67 per week.

6.2 Analysis

[118] Neither party is claiming retroactive child support.

[119] The court finds that the father currently earns $87,072.00 per year from his employment. Under the Child Support Guidelines he owes $1,313.00 per month in child support to the mother for the children.

[120] This amount will be paid commencing July 1, 2024 when the children are placed in the primary residence of the mother.

[121] The court finds that the sum of $18,000.00 should be imputed to the mother representing part time work at minimum wage commencing July 1, 2024. No support will be payable by her to the father for the period from the commencement of this Application to that date. The court finds that the mother was making reasonable efforts during that period to improve her English language skills and to gain Canadian work experience through volunteer work.

[122] The court orders that extraordinary expenses should be paid proportionately to the parties’ incomes each year. No specific extraordinary expenses were identified at trial.

Part Seven – Conclusion

[123] A final order shall go on the following terms:

Primary residence, decision-making responsibility and documents

(a) From the date of this order until July 1, 2024, the children shall continue to reside primarily with the father.

(b) From the date of this order until July 1, 2024, the mother shall continue to have parenting time with the children every first, second and third weekend of each month from Friday at 5:00 pm until Sunday at 7:00 pm. The father shall be responsible for the children’s pick up and drop off from the mother’s residence. The exchange will be facilitated by an agreed upon third party. The exchange location may be changed by mutual agreement.

(c) Commencing July 1, 2024, the children’s primary residence shall be with the mother and they will be transferred to a school in the mother’s local jurisdiction for September 2024.

(d) The mother shall have sole decision-making responsibility for the children.

(e) The mother shall give notice to the father and meaningfully attempt to consult with the father before making any major decision about the children.

(f) The mother may obtain or renew all government documentation for the children, including passports, without the father’s consent or signature. She will provide the father with a copy of all documents.

Travel

(g) The parties may travel with the children for vacation purposes for up to three weeks with the prior written consent of the non-travelling party, which consent shall not be unreasonably withheld.

(h) The travelling parent shall obtain a notarized travel authorization for the non-traveling parent if the vacation is outside of Canada by providing the other party with a “Travel Consent form” authorizing the children to travel, for the other party to execute and have notarized at the travelling party’s expense.

(i) The travelling parent shall give the non-travelling parent a detailed itinerary at least 14 days before the vacation begins, including but not limited to the name of any flight carrier and flight times, accommodation, including address and telephone numbers and details as to how to contact the children during the trip.

(j) If either party plans a vacation without the children, the travelling party shall give the other a telephone number where he or she can be reached in case of emergency or if the children wish to contact that party.

Parenting Time Schedule

(a) The father shall have parenting time with the children as follows:

(i) Starting on September 1, 2024, on the first three weekends of each month from Friday at 5:00 pm until Sunday at 7:00 pm. A later pick up may be agreed by the parties. If the weekend falls where there is a statutory holiday, the father shall return the child to the mother at 7:00 pm on Monday. He will be responsible for transportation.

(ii) Starting on September 4, 2023, the father will have mid-week access on Wednesdays from 6:00 pm to 8:00 pm. The timing of this visit may adjusted as agreed by the parties. The father will be responsible for transportation.

(iii) On weekday evenings that the children are in the mother’s care, the father is to have virtual contact for a total of 30 minutes with the children prior to their regular bedtimes.

(iv) Once the criminal restrictions are lifted, both parties may attend all school functions regardless of the parenting time schedule. The parties may attend parent-teacher meetings individually or together if both parties consent. Each party will obtain their own school calendar and school notices.

(v) Exchanges are to be facilitated by a mutually agreed upon third party until the criminal restrictions are lifted.

(b) The holiday schedule shall take priority to the regular schedule and will be as follows:

(i) School Summer break – Commencing in the summer of 2024, the parties shall have parenting time with the children on an alternate week basis from Sunday at 7:00 pm until the following Sunday at 7:00 pm. In odd-numbered years, the father shall have the first summer school break week. In even-numbered years, the mother shall have the first summer school break week. The father is responsible for pick up and drop off.

(ii) Mother’s Day/Father’s Day – if the children are not otherwise with the honoured parent on Mother’s Day or Father’s Day, the honoured parent shall have parenting time with the children from Friday at 5:00 pm until Sunday at 7:00 pm. This may require an adjustment of the weekend schedule to ensure father continues to have three weekends per month.

(iii) Child’s Birthday – the parties shall follow the usual schedule unless otherwise mutually agreed to by them.

(iv) Christmas Holidays – in odd-numbered years, the father shall have the children from the first day of the holidays from Friday after school until the following Friday at 6:00 pm. The mother shall have the children from Friday at 6:00 pm until the last day of the winter holidays. In even numbered years, the mother shall have the children from Friday after school until the following Friday at 6:00 pm. The father shall have the children from Friday at 6:00 pm until the drop off at school after the Christmas holidays. The father is responsible for the children’s transportation.

(v) March Break – the parties will continue to have their usual parenting time unless one of the parties is going on vacation.

(vi) Easter Weekend and Thanksgiving Weekend – the parties shall follow the usual schedule unless otherwise mutually agreed to by them.

(vii) The parties may mutually decide and agree in writing to an alternate holiday residency arrangement.

Communication and Information

(a) Each party shall on an ongoing basis, keep the other informed of their current email address, residential address and current phone number where they can be reached.

(b) When the existing criminal restrictions are lifted, the parties shall communicate directly via a parenting app to deal with matters pertaining to the children. Until this occurs, the parties shall communicate through an agreed upon third party.

(c) All communication between the parties shall be respectful. Neither party shall criticize, demean or make disparaging comments about the other in the children’s presence.

(d) The parties shall refrain from discussing with the children, or with a third party in the child’s presence, legal proceedings, or any conflicts between the parties.

(e) The mother shall advise the father of all appointments with any doctors, teachers or other service providers for the children. She shall keep him updated with their names and contact information.

(f) The father may obtain information directly from the children’s doctors, teachers or other service providers. The mother shall execute any authorizations or consents to give effect to this order.

(g) The parties shall immediately notify each other if the children have a medical emergency while in their care. They shall advise the other parent of the nature of the emergency, where the child has been taken for treatment and the name of any doctor treating the child. Once the existing criminal restrictions are lifted, both parties shall be permitted to attend while the child is being treated.

Child Support

(a) Based on an annual imputed income of $87,072.00 the father shall pay child support to the mother of $1,313.00 each month, starting on July 1, 2024. This is the guidelines table amount for two children.

(b) The mother’s income is imputed at $18,000.00 commencing July 1, 2024.

(c) Section 7 expenses will be shared proportionately by the parties.

(d) The parties shall both maintain the children as beneficiaries of any extended health insurance available through their employment and shall sign documentation authorizing the other to make claims directly to the insurer. A party who is reimbursed for a medical expense paid by the other shall immediately forward the reimbursed amount to the other.

(e) Nothing in this order precludes the Family Responsibility Office from enforcing arrears from any government source such as income tax or GST/HST refunds, or from any lottery or prize winnings.

(f) Support Deduction Order to issue.

(g) The father shall provide the mother with complete copies of his income tax returns, including all attachments and schedules, as well as the complete corporate returns of any business he operates, and his Notices of Assessment by June 30th each year, starting in 2025.

(h) The balance of the claims made by the parties are dismissed.

[124] If the mother chooses to seek costs she must serve and file written costs submissions by May 1, 2024. The father will have until May 15, 2024 to serve and file a written response. The submissions shall not exceed 3 pages, not including any bill of costs or any offer to settle. They are to be either delivered or emailed to the trial coordinator’s office.

Released: April 2, 2024 Signed: Justice Szandtner