Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 07 31 COURT FILE No.: Toronto D41868/21

BETWEEN:

N.W. Applicant

— AND —

P.F. Respondent

Before: Justice D. Szandtner

Heard on: June 17-19, 2024 Reasons for Judgment released on: July 31, 2024

Counsel: Elizabeth Julien-Wilson, for the applicant Michael Tweyman/Stephanie Pasternak, for the respondent

SZANDTNER J.:

Part One – Introduction

[1] This was a trial about the parenting and child support arrangements for the parties’ four year old child G. (the child). The child recently completed junior kindergarten and is spending alternate weeks in the care of each of his parents over the school summer break on consent of the parties.

[2] N.W. (the mother) seeks final orders for primary residence and sole decision-making authority for the child. She seeks an order that she first consult with the father prior to making a decision, but that she will be responsible for the final decision.

[3] The mother seeks a parenting time schedule for the father on a two-week rotational schedule as follows:

(a) Alternating weekends from Fridays after school (pick up at school or at 9:00 am from the mother’s home when the child is not in school) until the start of school on Monday (drop off at school or the mother’s home at 4:00 pm when the child is not in school); and,

(b) When school is in session, each parent shall be responsible for transporting the child to/from school during the parents’ parenting time.

(c) The parents shall have such additional periods of parenting time with the child, as can be agreed upon between the parents in writing.

[4] The mother also seeks a specified holiday schedule for the father including three weeks in the summer break.

[5] The mother seeks sole responsibility to secure and update any government documentation for the child. She further seeks a travel order providing that either parent planning a vacation during parenting time is required to provide notice of the trip and secure the other parents’ consent.

[6] The mother seeks to impute the father’s annual income at $50,000.00. She seeks an order for table support pursuant to the Child Support Guidelines (the guidelines) in the amount of $461.00 per month. She further seeks an order that the father pay 80% of the cost of special and extraordinary (section 7) expenses for the child.

[7] P.F. (the father) seeks a final order that the child reside primarily in his care.

[8] The father seeks an order for sole decision-making responsibility with respect to the child. Prior to any major decision being made, the father shall consult with the mother, including in writing if appropriate and shall consider her input with respect to the decision being made.

[9] The father seeks a final order that parenting time with the mother be as follows:

(a) Alternate weekends, from Friday after school, or if no school, 3:00 pm to Monday morning with drop off at school, or if no school 9:00 am.

(b) Every Wednesday, from after school, or if no school, 3:00 pm to Thursday morning with return to school, or if no school, 9:00 am.

[10] The father seeks a specified holiday parenting schedule including a week-about summer schedule.

[11] The father seeks an order that the parties shall fully cooperate in making any applications (including renewals) for the child’s passport, replacement birth certificate and other identity documents. They will share in the costs equally for all applications and renewals.

[12] The father seeks no order for child support payable by either party to the other. He seeks a termination of the current child support order.

[13] The parties each filed affidavits and financial statements as their direct evidence. They both provided oral evidence and were cross-examined. The mother also filed an affidavit from her personal friend R.L. who also appeared at trial. The father filed an affidavit from his personal friend J.R. The mother did not seek to cross-examine Ms. Robichaud and she did not appear at trial.

[14] The issues for this court to determine are:

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

(b) Is child support payable? If so, when should the child support order start?

(c) How much child support, if any, should be paid?

Part Two – Background Facts

[15] The mother is 46 years old. The father is 59 years old.

[16] The parties began dating in or about September 18, 2018. On or about May 2019, the father’s tenant moved out of his condominium residence in Toronto. The mother, who was pregnant with the child, moved into the unit and resided with him.

[17] The parties’ child was born in August of 2019. He is the only child of the relationship. He is currently four years old and has completed junior kindergarten.

[18] The parties separated on or about March 2020 when the mother moved out of the parties’ residence with the child and relocated to Hagersville. She later returned to Toronto and resides in her own apartment.

[19] The father works in property management in the Muskoka region. He also helps to run a gas station and store in the region in the summer.

[20] The mother currently relies on the Ontario Disability Support Plan (ODSP) for financial support.

[21] The mother issued her Application on September 1, 2021.

[22] The father filed an Answer/Claim on February 2, 2022.

[23] On February 22, 2022, the Honourable Justice Sager made an order for costs against the father of $500. She also made a temporary without prejudice order for the father to pay child support of $277.00 per month commencing March 1, 2022 based on his reported annual income of $32,400.00.

[24] On April 7, 2022, the parties executed a Consent which provided the father with temporary supervised access through Access for Parents and Children in Ontario (“APCO”).

[25] On February 2, 2023, the parties attended a case conference before Justice Sager and an order was granted on consent for parenting time pending the hearing of the father’s motion for unsupervised parenting time. It was agreed that the father would have parenting time with the child every Sunday from 1:30 pm to 3:30 pm (except for March 5th). The Father agreed to supervised parenting time with Renew Supervision Services (“Renew”) on a without prejudice basis.

[26] On April 13, 2023, the parties attended a case conference before Justice Sager and an order was made on consent expanding the father’s parenting time in anticipation of the hearing of the father’s motion for expanded unsupervised parenting time on June 7, 2023.

[27] The father’s motion was resolved on consent pursuant to the order of Justice Sager dated June 7, 2023. Under the order, the father had unsupervised parenting time, including two overnights a week, extended parenting time over the summer of 2023 followed by a 2 – 2 – 3 schedule commencing September 2023.

[28] The mother did not permit the father to have his parenting time with the child for the week of July 24 – 31, 2023 as set out in the temporary order. The father brought a 14B motion. The parties attended an enforcement motion before Justice Sager on August 16, 2023 which was adjourned to August 17, 2023. On August 17, 2023, the mother was found to have violated the parenting order of June 7, 2023 and the father was granted make up parenting time with the child from that date until September 1, 2023.

[29] Commencing September 2, 2023, the father’s parenting time was ordered to be as follows:

(a) The father’s weekly parenting time from Wednesday after school until Thursday before school with pick up and drop off at school; and

(b) The father’s alternate weekend parenting time from Friday after school until Monday before school with pick up and drop off at school.

[30] The parties attended a settlement conference and trial management conference on February 15, 2024.

[31] On June 6, 2024, the parties entered into a consent with respect to the summer of 2024. They agreed to a week about schedule.

Part Three – Parenting

3.1 The mother’s position and evidence

[32] The mother is seeking an order for sole decision-making and primary residence of the child. She is also seeking an order that he remain at his current school.

[33] The mother’s evidence is that her brother and her mother are both deceased. Her father currently lives in Woodstock and suffers from several medical problems. She is a source of support for him.

[34] The mother is a published poet. She has won several awards for her poetry. She describes herself as artistic and eccentric.

[35] The mother worked as a graphic designer and eventually began working behind the scenes in production for the film and television industry. She was also an actress in film and television.

[36] In October of 2018, the mother signed with the Stellar North Talent Agency. The father worked at the agency for the agency owner, D.B. The parties started dating.

[37] The mother testified that in spite of the fact that she believed that it was medically challenging for her to get pregnant, she did get pregnant within this relationship. She stated that the father told her to get an abortion.

[38] In or about May of 2019, the mother moved in with the father in his condominium. Their child was born in August of 2019.

[39] The mother testified that the father was not actively involved during her pregnancy and spent limited time with the child when they resided in his home. Her evidence is that she discovered that the father was a misogynist, had a temper and was inflexible. He reminded her that she was in his home and constantly threatened to throw her and the child out of the condominium. He denigrated her and was disrespectful and insulting. She described the father as both physically and emotionally abusive.

[40] The mother testified that she visited Dr. G. in October 2019 with the child. She admitted that Dr. G. contacted the Children’s Aid Society of Toronto (CAST) because of the stress she was under living with the father and due to concerns that she had reported that she was drinking a beer every couple of days and smoked cigarettes. Dr. G. further reported that the child was doing well and was up to date on all of his immunizations.

[41] The mother’s evidence is that on February 13, 2020, a CAST worker visited her. She told the worker J.A. that she intended to move out of the city to reside with a friend due to the stress and abuse in the home from the father. She discussed safety plans for the move with the worker.

[42] The mother left the father and his condominium with the child when he was about 7 months of age. (March 2020) She initially moved to Hagersville to live with an old friend.

[43] Following her move out of the home the father had inconsistent visits with the child. The mother denies that she refused to allow the father visits with the child after her departure.

[44] The mother testified that she secured her current apartment through Toronto Community Housing. She returned to Toronto and moved into the apartment on May 20, 2020.

[45] The mother testified that she became very anxious and stressed around the father because of the emotional abuse, name calling and disrespect she experienced from him over the years. It made it difficult for her to be able to explain and express herself in court. She felt minimized and dismissed.

[46] The mother’s evidence is that on February 28, 2023, the father noticed a scratch on the child’s face during his supervised access visit. The father proceeded to call the police to report that she had abused the child. On March 1, 2023, at a routine visit with Dr. Y., the mother explained that she walked out onto the balcony and closed the door behind her. The child ran to her and accidentally hit the door. The mother gave the same information to the CAST when they contacted her and told the staff at the access centre when she dropped off the child for this visit.

[47] The mother testified that she has taken primary care of the child for his whole life to date. She has ensured that he has proper medical and dental care. She had been diligent in her care of the child and he is developing normally. She has enrolled him in swimming. She participates in the child’s school and volunteers for community cleanup. She has established a nurturing and comfortable home and a consistent and appropriate routine for the child.

[48] The mother’s evidence is that the father was slow to participate in the legal proceeding. She alleges that the father does not engage with the child in any meaningful way. The father’s time with the child is centered around the father’s activities and his friends. The father engages the child in adult issues.

[49] The mother testified that the father has been unwilling to provide any care for the child. The father continues to do the very minimum financially for him even though his income is greater than is reported. She believes that he is paid on a cash basis by his employer. Her position is that his expenses are a better reflection of his earnings than his purported income.

[50] Under cross-examination, the mother admitted the following:

(a) She explained that she was accepted for ODSP in 2021. She worked in the movie industry prior to the award. Her last day working was July 8, 2019.

(b) When asked about her ODSP, she explained that she suffered a motor vehicle accident which led to a brain injury which affected her long and short-term memory. She was in a coma following the accident and had to learn how to walk, talk and eat again.

(c) She described mental trauma related to her family history. She specifically described her mother having one leg and brother who was a quadriplegic. Both required significant medical care. Her brother died. Her mother told her that she never wanted a daughter and then she also died.

(d) She is not currently accessing counselling or therapeutic support.

(e) The father was present at the birth of the child, but he wasn’t supporting her he was “taking photographs.”

(f) She admitted to telling the CAST worker that the father was evil once or twice because of the nature of their relationship. This comment was based on how he has treated her and what he has done. The father has not given her any reason to think otherwise.

(g) She admitted that the reason she stopped attending the Access for Parents and Children in Ontario centre (APCO) with the child for visits was due to “bullying and innuendos.” For example, the father gave the son a monster truck that said “psycho” on it.

(h) She also explained that she did not like that APCO did not provide her with a chair to sit down during the visits. She did not like to be exposed to the weather during the visits and resented the long travel time on transit.

(i) She admitted that she did not allow the child to go for the week with his father in the summer of 2023 as ordered. She said that her son did not want to go with him. It was crossed out on her calendar. She does not recall any other reason for her decision to withhold the child.

(j) When asked about whether she would comply with court orders in the future she stated as follows: “I have been caring for him since the day he was born. He was extracted through an emergency C-section. He is mine. No one should tell me what to do. If I feel it is in the best interests of my son. I raised him, I built him. If it is in his best interests I will go against the court again because the court does not know my son.”

(k) When asked about specific incidents of physical abuse by the father during the relationship she reported that on one occasion when the child was in the bassinet the father shoved it over to her and it hit her.

(l) When asked about the September 2019 incident described by the father in which she came home from the bar and interacted with the child, she explained that she repeatedly asked for the father to hand the son over. She thought it was appropriate to try to loosen his grip on the child.

(m) When asked about the December 2019 Cuba incident described by the father, she explained that the father had taken the son’s security pillow placed behind his head. The father started a pillow fight when he took the pillow away from the son. He got the black eye because of the pillow fight he started.

(n) When asked about calling the father a “sperm donor” she explained that she calls him that because he was not a father, he was not there, he was not helpful, he was not there to support her, not there to support his son. She called him a sperm donor because he was not a father figure or a father.

(o) When asked about calling the father a “pedophile” she explained that she has called the father that around the child and has identified him as such to school staff.

(p) When asked about calling the police to report the father parking illegally while he dropped off the child, she admitted that she had done so. She was not concerned about the impact on the child of inviting police interaction.

(q) When asked about enrolling the child in therapy she replied that she has asked her family doctor for a referral to a child psychologist. She did not consult with the father before doing so. Her reasons were as follows: “I made sure that he was safe and now he is forced into something precarious. I want to ensure his mental stability. The child is my top priority. He is my son. He will always be my son. He grew on my body and was cut out of my body.”

(r) When asked about seeking the father’s advice for any medical or dental decision for the child she replied that she has no need for the father’s assistance. She has taken the child unilaterally to doctors and dentists.

3.2 Children’s Aid Society of Toronto evidence

[51] The mother called CAST worker J.A. Her evidence was as follows:

(a) She is a family service worker. Her role is to work with families to try to prevent children coming into care. She meets with the family every 30 days and the child privately when age appropriate.

(b) She has a Masters of social work degree and has been working with CAST for 8 years.

(c) She worked with the mother from January 15, 2020 to March 2020 when the file was closed. It was closed on the recommendation of the service team in consultation with her supervisor.

(d) The file was opened following a phone call from Dr. G. at St. Michael’s Hospital reporting concerns with respect to partner conflict. The caller expressed concern that the mother’s partner was emotionally abusive and concern over the mother’s cigarette and marijuana use.

(e) At the time of the closure the mother had moved to Hagersville with the child. The worker went out to Hagersville for one visit. The mother did not want further CAST involvement. She observed the baby was doing well in the mother’s care.

(f) During her work with the mother, she observed that the child was meeting his milestones and there were no concerns about the care provided.

(g) She had discussions with the mother with respect to safety planning in the event that adult conflict came up. She was aware of the mother’s plan to move out of the father’s condominium. She participated in discussions about the move and how to ensure safety for the move. She did not secure the mother’s new accommodations. She spoke with the mother’s friend in Hagersville to confirm that he would be able to care for her and the child for a short time and to assist the mother with the move.

(h) She also met with the father. He indicated that he would continue to support the child financially. She reported that the father did not think that there were relationship issues.

3.3 The father’s position and evidence

[52] The father’s evidence is that he and the mother began dating around September of 2018 and started cohabiting on or about May 31, 2019. They never married. The child was born in August of 2019. The parties separated on March 3, 2020.

[53] The father’s evidence is that until separation, he was an active caregiver alongside the mother. He was involved in the pregnancy by attending the ultrasounds and attending at the hospital for the birth. He stayed at the hospital during the early days when the child was in an incubator. After the birth, he took the “evening shift” in caring for the child, so that the mother could sleep. He was actively involved in feeding the child, helping with bathing him and changing his diapers. The mother regularly left the child alone with the father to run errands.

[54] The father testified that the mother took the position that the child was “her son” and called the father “sperm donor” in communications and conversations.

[55] The father testified that he suffered from domestic violence during his relationship with the mother including physical abuse. He describes the mother’s behaviour as aggressive, controlling and confrontational. He testified that this behaviour would amplify when she was drunk or high on drugs which happened regularly. He acknowledges that he never reported these alleged incidents to the police due to shame and not wanting to see the mother arrested. For example:

(a) On September 29, 2021 the mother went out with a friend to play pool. The mother returned at 2:30 am and came into the room where he was with the 6 week old child. She demanded the return of the child immediately. The father was trying to feed him and was concerned that the mother was intoxicated. She dug her finger nails into him and grabbed his arm. She threatened to call the police. He refused to give her the child until she had sobered up. He was bruised as a result of this altercation. He attached a photograph of the bruising as an Exhibit.

(b) In December 2019, the parties travelled to Cuba with the child. The father alleges that the mother assaulted the father during the trip. He had taken a pillow that the mother wanted for the child. She grabbed the pillow from him and smacked the father on the side of his face with her elbow. The next morning, he went to walk-in clinic in Cuba to confirm that it was safe for him to fly home. He suffered a contusion as a result. He attached a photograph of his facial injuries as an Exhibit.

(c) An alleged incident occurred on February 9, 2020 where the mother punched the father in the face during an argument giving the father a black eye and a cut to his eyelid. He attached a photograph of his bruising as an Exhibit.

(d) On February 24, 2020, an alleged incident occurred in which the mother inflicted bruising on the father’s arm. He attached a photograph of the bruising as an Exhibit.

[56] The father’s evidence is that his relationship with the mother ended when she left the home with the child when he was seven months old to live with her former boyfriend in Hagersville, Ontario. The father begged the mother not to leave with the child and offered his home to the two of them to stay. She rejected the offer. He also suggested couples counselling which the mother rejected. A text message from the mother reflects that she moved out because she couldn’t “handle” him anymore. After she left, she didn’t leave her new address or any plan in place to allow the father to see the child.

[57] The father’s evidence is that he did not have her friend’s address and no means of contacting the mother and the child. He only knew that they were in Hagersville. She asked for her belongings to be mailed to a P.O. Box as opposed to a forwarding address.

[58] The father testified that he did not see the child until three months later on May 20, 2020. The mother did not allow him to have parenting time on a regular and consistent basis and insisted on personally supervising his visits with the child.

[59] From August 16, 2021 until supervised visits started in April of 2022, the father’s parenting time was extremely restricted, with a few visits only when the mother allowed them.

[60] On April 7, 2022, the parties executed a consent which provided for the father’s supervised access through APCO. Due to the availability limitations of APCO, the father’s first parenting visit did not occur until July 17, 2022. The father testified and the APCO notes reflect that these visits went well. The notes also reflect that the mother was disrespectful and disruptive during the visits. For example, on multiple occasions, the mother tried to persuade the staff to let her stay inside the centre during the visit, despite being told that she could not. During one visit, she tried to insist on ending the visit early, despite being told the time of the end of visit. On another occasion, she refused to follow the instructions of the staff, even though they advised that they were following their proper protocol. She raised her voice at and was rude to staff.

[61] The father testified that the October 23, 2022 visit was cancelled by the mother. The APCO notes indicate that she advised staff she was not returning due to their disrespect “for herself and her son.” On November 23, 2022, the mother again cancelled the scheduled visit at APCO.

[62] During his February 26, 2023 visit the father noticed abrasions on the child’s lip and bruising on the side of his face. He asked the child what had occurred. His reply involved actions allegedly taken by the mother of closing a door forcefully on his face. The father wanted the Renew supervisor to record the disclosure in his notes. The father reported the disclosure to the CAST.

[63] Renew suspended their services with the family when the father recorded one of the child’s disclosures with respect to this alleged incident.

[64] The father’s motion returnable June 7, 2023 was resolved on consent and granted the father unsupervised parenting time as follows: every Monday from 9:00 am to Tuesday at 6:00 pm and every Thursday at 9:00 am until Friday at 1:00 pm and extended summer vacation time.

[65] The mother did not adhere to the June 7, 2023 order and withheld the child for the father’s uninterrupted week of parenting time from July 24, 2023 to July 31, 2023. The father’s evidence is that he arrived at the mother’s home and she simply refused to allow the child to leave with him. To avoid confrontation, the father left the premises. He contacted police and counsel. He had made summer plans that had to be cancelled.

[66] The father brought a 14B motion and was granted leave to bring an urgent enforcement motion returnable August 16, 2023. The mother was found to have violated the parenting order of June 7, 2023 and the father was granted make up uninterrupted parenting time with the child from August 17, 2023 to September 1, 2023.

[67] The father’s evidence is that the mother would use the police and CAST to scare him and get her way. The police have been involved with the family on multiple occasions where the mother alleged that he was violent. She would also report these allegations to the CAST. The police have never laid charges against the father and the CAST have never verified the mother’s concerns regarding the father’s alleged violence. For example:

(a) In June or July 2023, the mother emailed CAST to allege that the father had been throwing the child in the air and dropped him on his back from two feet in the air. She also alleged that on June 8, 2023, one day after the father’s motion, the father returned the child with a gash on his cheek and ear. The father testified that on May 27, 2023 the parties were at the paternal grandfather’s home. The child was lying on the father’s shins while he raised them while sitting. The child was laughing and enjoying himself. He was one foot off the ground and slipped off the shins and fell on the ground. No harm was verified by CAST.

(b) In July of 2023, the mother called CAST because she was concerned with the child’s time with the father in relation to a sunburn, the consistency of his stool and the father’s use of the car seat when the child was an infant. No harm was verified by CAST.

(c) On July 21, 2023, the mother called the police because the father was parked illegally. He had asked her to come down to the parking lot of her building to get the child as a result of the lack of parking in the lot. When the police arrived they contacted the father to follow up. No charges were laid by the police.

(d) On January 14, 2024, the mother called the CAST to report that the father had played with the child’s private area, causing irritation and had taken inappropriate photographs of the child. The allegations were not verified by CAST.

(e) On March 22, 2024, the mother reported to CAST worker L.H. (in front of the child) that the father had used crack-cocaine in the past. This was not verified by CAST.

[68] The father’s evidence is that the child went through a period where he called his father “sperm donor” parroting the mother’s words. It was only in August/September of 2023 when he started calling the father dad. On September 10, 2023, the child said to his father “You tried to have me aborted.”

[69] The father testified that he was extremely upset to hear during the trial that the mother had called him a pedophile in front of staff in the child’s school office.

[70] The father is worried about the negative messages about him that he is receiving from the mother. He does not know how he copes with it as a four year old. He is scared that the child will develop animosity towards him because of the stories he is told.

[71] The father’s evidence also includes AppClose exchanges between the parties which reflect the mother’s denigration of him:

(a) February 8, 2024 “You.Are.The.PROBLEM” “I have never once met a man as SELFISH AND UNDESERVING as You.”

(b) April 25, 2024 “You as the inseminator are not my ruler. Simple ejaculation. You can provide whether or if you are useful at all.”

(c) September 10, 2023 “You are EVIL.”

[72] The father is seeking primary residence of the child in his home. His home is a condominium in downtown Toronto which he owns. His home is a six minute drive from the mother’s home.

[73] He is seeking an order for sole decision making for the child with a duty to consult with the mother prior to making the final decisions. He plans to transfer him to a school in his neighbourhood. In his view this is a better school area than the child’s current school area as he has observed significant drug use, vagrancy and illegal drug dealers in its vicinity.

[74] The father’s proposed parenting plan for the mother is that she have alternate weekends with the child and one overnight during the week. He will also encourage Facetime calls with the mother.

[75] The father works as a property manager for a close friend. He helps to rent out places and does repairs when needed. In the summer he spends time at a property in Muskoka which is a gas station, residence and convenience store. He testified that he has a very flexible work schedule and can take time off when needed to care for the child. He is able to pick up and drop off the child at school. He is able to facilitate extra-curriculars. He would like to enrol the child in guitar and/or piano lessons and house league soccer.

[76] The father describes the child as a bundle of energy who loves to be outside to play. He enjoys going to jungle gyms and playing with other children, puppet shows, drawing and watching cartoons. The father enjoys spending time with the child at a cottage in Muskoka hiking, paddle-boating and playing in a local park. The father is teaching the child how to swim in a pool.

[77] The father acknowledges that the mother is also a loving and attentive parent to the child and that she and the child are bonded. He reports significant concerns with respect to her anger against him and the constant undermining of his relationship with the child. He is worried that as the child grows up, the mother will attempt to alienate him from his father and will regularly cause him confusion by saying that his father is harmful to him.

[78] Under cross-examination, the father testified as follows:

(a) He found out for the first time at trial that the mother had called him a pedophile in front of the staff in the school office.

(b) It was his understanding that obtaining a paternity test was the first step required of him before seeking parenting time with the child.

(c) He is willing to go to therapy if the mother also wants to participate and she thinks that it would help their relationship as parents.

(d) He identified that mother’s marijuana and beer consumption as contributing to their conflict. He has not consumed alcohol or marijuana in two years.

(e) When asked about his role in generating conflict he said that he is human and sometimes reacts to hearing her insults and derogatory attacks. He admits to reacting, but not to including the child in that conflict.

(f) He stated that the mother has proven that she has no filters and bad judgment with what she says to the child about him.

(g) He stated that he feels horrible that the child is having to endure loyalty binds as a result of the mother’s denigration of his father.

(h) When asked about the Renew incident, he stated that he did not ask them to take photos. The supervisor said that he would ask for mother’s side of the story. He understood that the supervisor was not going to document or investigate the remarks. When the child reported the incident a second time the father called CAST. The father’s visits stopped at Renew when he made a video of the child against Renew protocol.

(i) Following the separation he has maintained his distance from the mother. He has been vigilant about avoiding conflict. If it is escalating he removes himself from the situation.

(j) He prefers his local school for the child because the mother lives in social housing. He has observed a lot of drug use in the neighbourhood and worries about the impact on the child as he gets older. He has observed an apartment on her floor that attracted police presence due to illegal drug concerns.

(k) If he was awarded sole decision-making he would listen to the mother about different options for the child’s schooling.

(l) He could not say how he would deal with the child asking to return to mother’s home if placed with him. He stated that to date he has enjoyed this time with his father. He can help him with his emotions in the future.

(m) He has not spoken with mother about enrolling the child in activities to date.

(n) The mother told him that her brain injury occurred when she was crossing the road and was hit by a car. She struck the windshield and suffered injuries to her frontal lobe. She had an operation removing part of her skull due to swelling. She was in a coma for a significant period of time and not able to walk or talk. She was rehabilitated to relearn these functions and took medication for blood clots in the brain. She explained to him that marijuana was better for her coping with her brain disabilities and healing process. She stopped taking the medication for the blood clots.

(o) The mother did not advise him that the accident impacted her speech or comprehension. He did notice that sometimes the mother speaks softly. From his perspective, she seems cognitively sound with her communication. He did not find that she was experiencing any different sense of events. She seemed grounded in reality and intellectually capable to him.

(p) The father does not see how his text messages in AppClose denigrate the mother. However he admits that he can’t always promise to be calm – sometimes he does react to her comments.

3.4 Children’s Aid Society of Toronto evidence

[79] The father called CAST workers E.B. and L.H. as witnesses.

[80] CAST worker E.B. provided the following evidence:

(a) She has been employed by the CAST as an investigation worker for 15 years.

(b) She was involved with the family from January 15, 2024 to January 25, 2024 when the file was transferred to L.H.

(c) The family file was reopened when the mother contacted CAST alleging that the father sexually abused the child.

(d) She met with the mother once. She did not meet in person with the father. She met with the child at school.

(e) Following her conversation with the child at school she was concerned that he was aware of information beyond what a child should know. For example, the child spoke negatively about the father, telling her that the father wanted to abort him, that the father left mother and then came back to get money from the courts because he wanted to get the child away from his mother.

(f) The mother acknowledged that she was under a lot of stress due to co-parenting. The child would see that she was upset and she would explain why she was upset. She agreed that she referred to the father in a negative light. She did not feel bad about it because she felt overwhelmed.

(g) On January 15, 2024 E.B. notes as follows: “The mother has acknowledged being stressed and overwhelmed by the co-parenting relationship with the father and the court process. She stated that there are times that she will advise the child of what is happening and that she has told him that the father is evil. The mother said that she is remorseful for this but that she has no one else to talk to about her experience.”

(h) She reported that she did not have any concerns about the care being provided by either parent or any abuse. She observed that his basic needs were met and he was loved by both parents.

(i) The mother’s allegations of sexual abuse of the child by the father were not verified. There was no evidence to justify this coding.

(j) Risk of harm due to post separation conflict was verified re: both parents. She was concerned about the child’s emotional well-being caught in the middle of the parents. She observed nothing to suggest that the father was instigating the conflict. The major concerns were related to what the child was saying about his father.

[81] CAST worker L.H. provided the following evidence:

(a) She is employed by CAST as a family service worker.

(b) She was involved with the family commencing February 6, 2024 when the file was transferred from the intake worker E.B.

(c) She identified the main issue as the child’s exposure to adult conflict.

(d) She had five meetings with the family and conducted home visits alternating between the two homes. She was able to observe the parents’ interactions with the child.

(e) She observed no concerns with either parent’s interaction with the child. The child is affectionate with both parents. They were both appropriate with the child and spoke to him in a child-friendly manner.

(f) She also noted that in visiting with the mother that she continues to speak negatively about the father in the presence of the child. She had to redirect her during each visit.

(g) She has concerns about the impact of denigrating the other parent on the child. She advised them that the child will feel that he needs to side with a parent. Or he will believe what the mother is telling him is true. These big feelings can be internalized and result in issues at school.

(h) At the father’s home, there is never any talk about the mother. He is focused on parenting the child and plans for the future. She observed that the father is generally calm and very attentive to the child. She has not personally seen the father instigating conflict with the mother.

(i) She has referred the child to the George Hull Centre but the file has not been picked up. She had some concerns about the child’s behaviour and level of anxiety. The mother agreed with the referral. The referral is based on the child’s anxiety and stress. It is also based on the child’s lack of appropriate boundaries in his interactions with L.H.

(j) The mother shared her allegation to staff in the school office by calling the father a pedophile. The mother’s allegations of sexually inappropriate behaviour in father’s care have not been verified by CAST.

3.5 Admissibility of the Father’s Audio Recordings of the Parties’ Interactions

[82] The father sought to have audio recordings of past interactions between the parties admitted into evidence. He argues that the interactions were recorded with the knowledge of the mother and that they support his version of events and the mother’s denigration of him and her physical violence against him.

[83] The mother argues that the audio recordings should not be admitted into evidence as they were obtained without her knowledge or consent.

[84] The caselaw with respect to the admission of recording as evidence primarily focuses on balancing the general policy goal of discouraging parents to record each other against the probative nature of the recording itself. Factors such as relevance, reliability, and the probative value with respect to the best interests of the child as the most prominent consideration the court should find admissible. Patel v. Patel, 2023 ONSC 6307.

[85] The court finds that the audio recordings are of marginal probative value for the following reasons:

(a) The father has not established that they were not recorded surreptitiously. His own evidence is that the mother was allegedly intoxicated when she was advised of the recording during one of the incidents.

(b) The father has not established that the recordings are reliable and that they have not been digitally altered by him. They were recorded on his personal phone over four years ago. The court has no assurance that they have not been digitally edited or altered.

(c) The relevance of this evidence is to issues (denigration and physical violence) for which the court has access to admissible evidence. The father relies on mother’s testimony, her AppClose communications and her CAST interviews to substantiate his position that she denigrates him. The father relies on photographic evidence to substantiate his position that the mother physically assaulted him.

[86] The court finds that the probative nature of the audio recordings do not outweigh the general policy goal of discouraging recordings of this nature.

[87] The audio recordings are not admissible in this proceeding.

Part Four – Decision-making Responsibility and Primary Residence

4.1 Legal Considerations

[88] 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 Children’s Law Reform Act (the Act). The court has considered these factors, where relevant.

[89] 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.

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

Factors

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

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

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

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

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

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

ii) 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

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

[91] The Ontario Court of Appeal in Kaplanis v. Kaplanis, 2005 ONCA 1625 sets out the following principles to consider in determining whether or not joint decision-making responsibility order is appropriate:

a) There must be evidence of historical communication between the parents and appropriate communication between them.

b) It can’t be ordered in the hope that it will improve their communication.

c) Just because both parents are fit does not mean that joint custody should be ordered.

d) The fact that one parent professes an inability to communicate does not preclude an order for joint custody.

e) No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

f) The younger the child, the more important communication is.

[92] Mutual trust and respect are basic elements for a joint custody order to work effectively. See: G.T.C. v. S.M.G., 2020 ONCJ 511.

[93] Absent concern about such issues as abuse, each parent should be expected to support the children’s relationship with the other parent, and to take steps to ensure that the children have a positive attitude about that relationship. Where there are equally qualified parents, who would best facilitate access is a significant factor in making custody and access decisions. See: Moreira v. Garcia Dominguez, 2012 ONCJ 128.

[94] Where there are equally qualified parents, who would best facilitate access is a big factor. Huisman v. Stafaniw.

[95] If one parent does not facilitate, or undermines the child’s relationship with the other parent, it will be a relevant factor in determining their ability to act as a parent (a listed best interests factor under s. 24 (2) of the CLRA. See: Leggatt v Leggatt, 2015 ONSC 4502.

[96] A parent who promotes the child’s contact with the other is presumably doing so because he or she also desires to promote the child’s relationship with the other. The willingness to do so is obviously a positive attribute for any person seeking custody as this shows that the parent is willing to set aside any of their own personal animosities against the other in the best interests of the child. It bodes well for the child’s relationship with both parents in the future as well as future cooperation between the parties. The corollary of this is, of course, that custody is contraindicated for a party who does not wish to promote the relationship between the child and the other parent. For obvious reasons, that is seen as harmful to the child and it eventually sets the stage for potential parental alienation. See: Di Bratto v. Sebastiao, 2015 ONSC 1996.

[97] A custodial parent must not just accommodate access, they must facilitate it. Scrivo v. Scrivo, 2012 ONSC 2727; Tran v. Chen, 2012 ONSC 3994.

4.2 Analysis

[98] The court finds that it is the child’s best interests that he be placed in the primary care of the father and that the father have final sole decision-making responsibility for the child.

[99] This is based on the following findings of fact:

(a) The mother suffered a serious brain injury which required extensive rehabilitation. She currently relies on ODSP and is not employed. She is not currently engaged with any therapeutic supports. She does not have family or friends that she relies on regularly to assist her with the care of the child.

(b) The mother presents as very fragile emotionally. In court she visibly reacted to the father’s evidence with anger and outrage. She had difficulty regulating her emotions during the trial.

(c) The mother has clear contempt for the father as a person and as a parent. She testified that she refers to him as evil and a sperm donor in the presence of the child. She advised the staff at the child’s school that the father is a pedophile. At trial she again denigrated him in this manner without hesitation.

(d) The mother considers the child to be hers alone and not a child that she shares with the father. The mother left their shared residence without providing a forwarding address or a parenting plan to the father. She did not facilitate contact with him voluntarily post separation. She was difficult with the APCO centre staff charged with supervising the father’s initial contact. She was resistant to the expansion of the father’s parenting time. The father’s time with the child was expanded extremely slowly and only with court intervention.

(e) The mother will not voluntarily involve the father in parenting decisions. When asked about seeking the father’s advice for any medical or dental decision for the child she replied that she has no need for the father’s assistance. She has taken the child unilaterally to the doctor and dentist.

(f) The mother is not likely to comply with court orders if she does not agree with them. She testified candidly: “ I have been caring for him since the day he was born. He was extracted through an emergency C-section. He is mine. No one should tell me what to do. If I feel it is in the best interests of my son. I raised him, I built him. If it is in his best interests I will go against the court again because the court does not know my son.” This finding is supported by the mother’s decision to withhold the child from the father for the week of parenting time ordered for the father in the summer of 2023.

(g) The mother seeks to actively alienate the father from the child through her discussions of the litigation with the child. She reported to the CAST worker E.B. that she discusses the litigation with the child and denigrates the father in conversation with the child. The court finds that this has resulted in the child parroting her insults, “sperm donor” or “evil” to the father and the CAST worker.

(h) The court finds that this alienating behaviour by the mother places the young child in the middle to the parents’ conflict which he is ill-equipped to handle. The court finds the child’s behaviour and level of anxiety that led to the recent CAST referral to the George Hull Centre is linked to the mother’s alienating behaviour.

(i) The mother has not been able to refrain from abusive language in her virtual communication with the father even when it is recorded and the matter is before the court. The AppClose evidence reflects her frequent use of abusive and denigrating language and the use of all caps to emphasize her personal attacks on the father. The court finds that the mother is easily triggered by communications from the father if she disagrees or feels they are not acceptable to her.

(j) The mother has alleged verbal abuse by the father towards her. The court finds it credible that there were frequent verbal altercations between the parties during their cohabitation. They did not have a strong relationship prior to the birth of the child and were stressed by the demands of a newborn. The court finds as a fact that the mother left the condominium to live with her friend to escape a high conflict dynamic between the parents.

(k) The mother has alleged physical abuse by the father. She only identified one specific incident of the father shoving the child’s bassinet towards her which hit her. She did not report any physical abuse to the police. The court finds that the mother did not establish ongoing physical abuse by the father during the relationship in her evidence at trial.

(l) The mother has alleged a range of child protection concerns with respect to the father’s care of the child. The most serious allegation is that the father sexually abused the child. The allegations were all investigated by the CAST and were not verified. The court finds that the CAST investigations were appropriate and thorough. The court does not find that the mother’s allegations about protection concerns with respect to the father’s care of the child are credible.

(m) The father has alleged physical assaults by the mother. Based on his accounts of the interactions, his photographic evidence and the mother’s testimony, the court finds that the incidents described occurred as he described. They are an extension of high conflict dynamic between the parents and the mother’s difficulty with regulating her emotions in this context.

(n) The father has alleged that the child suffered an injury to his head while in the mother’s care post-separation. The mother explained that the injury was accidental. The court accepts her explanation of the incident.

(o) The father has a plan for the care of the child that is stable. The child will be living in his condominium and attending the local school. The father has flexibility in his work commitments and is able to pick up and drop off the child at school and accommodate extra-curricular activities. He has access to a place to stay in cottage country and will continue to engage the child in outdoor activities.

(p) The father recognizes the strengths of the mother and her strong bond with the child. He is the parent more likely to nurture the child’s relationship with the other parent.

(q) The father is the parent more likely to follow court orders. He paid the temporary child support ordered. He patiently abided by the orders within a long court process over two years to transition from supervised access at APCO (April of 2022) to the current week about 2024 summer schedule.

(r) The father is the parent better able to make major decisions in the child’s best interests because he is the parent who will consult with the other parent and consider her opinion and input.

(s) Both parents love the child and have developed strong parental relationships with him.

(t) The child is too young to ascertain his views and preferences.

[100] The court order will provide that the father is to make meaningful efforts to first consult with the mother prior to making a major decision for the child.

[101] The court order will permit the mother to obtain information directly from the child’s service providers.

[102] Neither parent sought a joint decision-making order. The court finds that mutual trust and respect and level of effective communication which are the basic elements for a joint decision-making order to work effectively are not present between these parties. Making such an order could paralyze important decisions that have to be made for the child.

Part Five – Parenting Time

5.1 Legal considerations

[103] 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.

[104] 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.

[105] 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.

[106] 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: Bokor v. Hidas, 2013 ONCJ 40; L.I.O. v. I.K.A., 2019 ONCJ 962; J.N. v. A.S., 2020 ONSC 5292.

[107] Before concluding a shared parenting regime, which will likely require frequent communication between the parents, is in the best interest of a 4 year old child, the court ought to be able to find at least that:

(a) The parties can speak to one another directly and not just in writing;

(b) The parties behave respectfully towards one another;

(c) The parties will cooperate to ensure the child’s needs are being met;

(d) The parties are capable of putting the needs of the child before their own;

(e) The parties demonstrate a reasonable amount of emotional maturity and will demonstrate that emotional maturity where there is a disagreement; and,

(f) The parties will behave appropriately towards one another at all times in front of the child.

5.2 Analysis

[108] Neither of the parties seek a regular shared or equal parenting time schedule in this case. They each seek to have the primary residence and that the other parent have less time within a parenting schedule during the school year. The father seeks a week about schedule for the summer in keeping with the current summer consent order.

[109] A shared or equal time schedule for a young child requires a high level of communication and cooperation that is not in evidence in this case. It is not in the child’s best interests as the communication between the parties is poor. There is no basis to believe that the parents could effectively coordinate schooling, medical appointments and extra-curricular activities for the child within a shared or equal time schedule.

[110] The court finds that it is in the child’s best interests to implement a regular parenting schedule that grounds the child in the primary residence of the father, but also provides significant contact with the mother. The child has been raised in the primary care of the mother and has a strong emotional connection with her. This will be preserved while also ensuring that he has the stability of his father’s care.

[111] The regular parenting schedule for the mother shall be as follows:

(a) Week One: The mother shall have Monday from after school, or if no school, 3:00 pm, to Tuesday morning with return to school or if no school, 9:00 am. The mother to have the weekend from Friday after school or if no school, 3:00 pm, to Monday morning with drop off at school or if no school 9:00 am.

(b) Week Two: The mother shall have Thursday from after school to Friday morning with return to school or if no school, 9:00 am.

[112] The court finds that it is also in the child’s best interests to continue the current week about schedule for the child in the summer break.

[113] The court finds that a structured schedule to account for special days and other school breaks is in the best interests of the child in order to reduce conflict between the parties.

Part Six – Incidents of parenting

[114] Section 28 of the Children’s Law Reform Act sets out the different types of parenting orders that a court can make. These include orders regarding documentation for children and travel with children.

[115] The mother seeks sole responsibility to secure and update any government documentation for the child. She further seeks a travel order providing that either parent planning a vacation during parenting time is required to provide notice of the trip and to secure the other parents’ consent.

[116] The father seeks an order that the parties shall fully cooperate in making any applications (including renewals) for the child’s passport, replacement birth certificate and other identity documents.

[117] The court finds that the mother has shown an unwillingness to voluntarily cooperate with the father that could impede the procurement and renewal of identity documents and the ability of the child to experience and enjoy travel. For example, she had no explanation for her unilateral decision to breach the court order providing the father with a week of holiday time with the child in the summer of 2023.

[118] Accordingly, the court will make a structured travel order that requires notice and details and has different timelines for different types of travel. This will provide a clear pathway to the parents should either seek to travel with the child. The order is as follows:

(a) The parties may travel without the consent of one another during their parenting vacation time. If they are seeking to travel outside of their parenting vacation time, they must obtain consent of the other party, such consent not to be unreasonably withheld.

(b) The parties will be required to provide notice at least 14 days in advance of a trip within Canada and 30 days in advance of a trip outside of Canada. Each will provide the other with a travel itinerary, copies of return airplane or train tickets, addresses and contact numbers for the duration of the stay and make arrangements (time zones permitting) for the other parent and child to communicate during the trip. If required for a longer trip, a plan for make up time for the other parent will be made prior to departure.

Part Seven – Child Support

7.1 Position of the parties

[119] The mother’s Application seeks retroactive support commencing September 1, 2019 and ongoing child support. At trial she sought to impute the father’s annual income at $50,000.00. She seeks an order for guideline support pursuant to the Child Support Guidelines (the guidelines) in the amount of $461.00 per month. She further seeks an order that the father pay 80% of the cost of special and extraordinary (section 7) expenses for the child.

[120] The father seeks no order for ongoing child support payable by either party to the other. His position is that no arrears in child support are payable. He seeks a termination of the current child support order.

7.2 Legal Considerations

Start Date for Child Support

[121] The court’s authority to make support orders is contained in clause 34 (1)(f) of the Family Law Act. This clause reads as follows:

34 (1) In an application under section 22, the court may make an interim or final order,

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

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

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

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

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

(4) The court retains the discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors continue to guide this exercise of discretion, as described in Michel v. Graydon, 2020 SCC 25. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.

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

[123] This framework in Colucci addresses a request to retroactively increase the support contained in an order or an agreement. Courts have found that this framework should also be applied, with necessary modifications, for an original request for retroactive support. See: M.A. v. M.E., 2021 ONCJ 555; A.E. v. A.E., 2021 ONSC 8189.

[124] In an original application for retroactive support, there will be no need to meet the threshold requirement of establishing a material change in circumstances, as required in Colucci.

[125] The first step will be to determine the presumptive date of retroactivity as described in Colucci. The second step will be to determine if the court should depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors will guide the exercise of that discretion, as described in Michel v. Graydon, 2020 SCC 25. The third step will be to quantify the proper amount of support for each year since the date of retroactivity, calculated in accordance with the guidelines.

Amount of Child Support Payable

[126] Section 19 of the Child Support Guidelines reads as follows:

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

a) The parent or 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 parent or spouse;

b) the parent or spouse is exempt from paying federal or provincial income tax;

c) the parent or spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines;

e) the parent’s or spouse’s property is not reasonably utilized to generate income;

f) the parent or spouse has failed to provide income information when under a legal obligation to do so;

g) the parent or spouse unreasonably deducts expenses from income;

h) the parent or spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

i) the parent or spouse is a beneficiary under a trust and is or will be in receipt of income or benefits from the trust.

2. Reasonableness of expenses. – for the purpose of clause (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act (Canada).

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

[128] The court stated in Drygala v. Pauli, 2002 ONCA 41868 that there is no need to find a specific intent to evade child support obligations before income is imputed. The court set out the following three questions which should be answered by a court in considering a request to impute income:

(a) Is the party intentionally underemployed or unemployed?

(b) If so, is the intentional under-employment or unemployment required by virtue of reasonable educational needs?

(c) If so, what income is appropriately imputed?

[129] The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines and impute income. See: Smith v. Pellegrini, 2008 ONSC 46927; Maimone v. Maimone, 2009 ONSC 25981.

[130] The court may impute income where it finds that a party has hidden or misrepresented relevant information respecting their income to the other party or to the authorities. This includes cases where the evidence indicates that a party earns cash income that they do not declare for income tax purposes. See: Kinsella v. Mills, 2020 ONSC 4785; Prillo v. Homer, 2023 ONCJ 8.

[131] The court can also impute income where the evidence respecting income is not credible for any other reason. See: Heard v. Heard, 2014 ONCA 196; Gostevskikh v. Gostevskikh, 2018 BCSC 1441; M.A.B. v. M.G.C., 2022 ONSC 7207.

[132] 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.

[133] A person’s lifestyle can provide the basis for imputing income. See: Aitken v. Aitken, 2003 ONSC 2780; Jonas v. Jonas, 2002 ONSC 2117; Price v. Reid, 2013 ONCJ 373; Prillo v. Homer, 2023 ONCJ 8.

7.3 Analysis

Start Date for Child Support

[134] The mother’s Application identifies the date of separation as March 7, 2020. She seeks retroactive child support commencing on September 1, 2019. She served her Application seeking child support on the father on November 1, 2021.

[135] The father’s Answer identifies the date of separation as March 7, 2020. His evidence is that he paid voluntary support to the mother for the child on a monthly basis following the parties’ separation.

[136] It is undisputed that the parties were residing together in the father’s condominium until the mother departed with the child in March of 2020. It is also not disputed that the father was voluntarily paying child support to the mother for the child on a monthly basis following her departure from their shared residence. The evidence is clear that she was seeking child support and the father was voluntarily paying child support.

[137] The mother did not have the benefit of any financial disclosure from the father during the March 2020 to November 2021 period. She had no way of knowing if the amount being paid on a voluntary basis was in keeping with the guidelines.

[138] There is no evidence before the court that the mother sought an increase in the child support being voluntarily paid during this time period. Accordingly, the presumptive date for the commencement of child support is the date of formal notice, the service of her application seeking child support according to the guidelines is November 1, 2021.

[139] The second step is for the court to determine whether or not it should exercise its discretion to depart from the presumptive date where the result would be unfair. In the case before the court there is evidence that the father failed to make any financial disclosure of his income to the mother after she asked for child support. He unilaterally set the amount payable.

[140] The court is required to consider the reasons for any delay on the part of the support recipient. The delay in this case is reasonably explained by the evidence before the court. First, that the mother’s initial focus was on getting a secure independent residence established for herself and the child. Secondly, the parties separated in March of 2020 which was the onset of the COVID pandemic. The uncertainty and restrictions engendered by this event are a reasonable explanation for a delay in commencing a court proceeding. Further, the father’s lack of financial disclosure did not give the mother the opportunity to assess if she should come to court earlier and is also an understandable reason for the delay.

[141] There is no evidence before the court of undue financial hardship to the father that would be caused by the retroactive award sought. Father’s financial statements reflect that he the sole owner of a condominium in Toronto and a second condominium in Montreal.

[142] Accordingly, the court finds that there are grounds to depart from the presumptive date of retroactivity as the result would be unfair. Child support is payable commencing on the date of separation of March 7, 2020.

[143] This start date generates a retroactive period of child support owing from March 2020 to November 1, 2021 and ongoing child support from the service of the application from November 1, 2021 onwards.

Amount of Child Support Payable

[144] The father’s position is that there are no child support arrears owing. His evidence is that he has complied with the temporary child support order of $277.00 per month commencing on March 1, 2022. He further provided evidence (bank statement) of voluntary payments to the mother from November 13, 2019 to October 1, 2022 totalling $14,400.00.

[145] The father’s evidence is that his significant net worth ($1,520,574.44 on his May 28, 2024 financial statement) is the result of an inheritance. It is his evidence that he works as a property manager at a gas station in Gravenhurst owned by his employer and friend. He says that he does not receive cash for the work and that his expenses as a self-employed contractor are between $14,000.00 and $16,000.00 half of his income of approximately $30,000.00. This income is reported on his notice of re-assessment for the tax year 2021, attached to his financial statement dated May 28, 2023.

[146] The father has provided his tax returns for 2019 – 2022 which reflect the following Line 150 incomes:

(a) $26,358.00 (2019)

(b) $26,773.00 (2020)

(c) $30,910.00 (2021)

(d) $20,972.00 (2022)

[147] The father had not completed his 2023 taxes as at the date of trial and did not provide them as evidence to the court.

[148] The father’s financial statement sworn May 29, 2023 reports that his monthly income is $1,935.51 and his monthly expenses are $4,198.83.

[149] The court finds that the father voluntarily paid to the mother $10,354.00 from the date of separation of March 7, 2020 onwards. This is based on the bank records filed as an Exhibit. He further paid $277.00 per month as ordered by Justice Sager from March 1, 2022 onwards.

[150] The court has considered the father’s capacity to earn income as a property manager during this period. The father has not identified any disability that would render him unable to work on a full-time basis. The father has not provided evidence of under-employment due to educational needs. The father’s evidence is also that his employer is a personal friend and that his work for her involves property management. He has a longstanding relationship with this employer who is a property owner.

[151] The court is also taking into account the impact of the pandemic in 2020 which would have had a negative impact on his ability to work due to the restrictions placed on travel within Ontario during the initial summer of the pandemic.

[152] The court finds that the evidence supports an order imputing an income of $35,000.00 to the father for 2020 (first summer of pandemic) and an income of $45,000.00 to the father from January 2021 to August 1, 2024.

[153] The father was voluntarily underemployed during this period. The father was capable of earning this level of income. He had work experience. He had a longstanding employer/friend he could have asked for more responsibility or more hours. He could also have sought a work reference from her to allow him to secure similar or additional employment.

[154] This imputation of the father’s income as set out generates a monthly amount owing of $304 in 2020 and a monthly amount of $418 from January 2021 to 2024. This is the adjusted child support owing from March 1, 2020 to August 1, 2024. This period is a total of 53 months generating child support owing of $21,014.00.

[155] This amount of arrears owing is offset against the voluntary payments made by the father to the mother during this period ($10,354.00) and the court ordered child support paid ($8,033.00). The arrears owing to the mother is $2,627.00.

Ongoing Child Support (August 1, 2024 onwards)

[156] The court has placed the child in the primary residence of the father. He is not seeking child support from the mother, only a termination of the current temporary child support order.

[157] There is no child support payable by the father to the mother on an ongoing basis and the current temporary order is terminated.

[158] The father is not seeking any child support from the mother on an ongoing basis and no child support is payable to him by her.

Part Eight – Conclusion

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

Primary residence, decision-making responsibility and incidents of parenting

(a) The child’s primary residence shall be with the father.

(b) The father shall have sole decision-making responsibility for the child with respect to major health and educational decisions for the child including school enrolment. Prior to any major decision being made, the father shall consult with the mother, including in writing if appropriate and shall consider her input with respect to the decision being made. He will make the final decision.

(c) The father may obtain or renew all government documentation for the child, including passports, without the mother’s consent or signature. He will bear the costs of these applications and renewals.

(d) The father will provide the mother with notarized copies of all government documentation for the child. The father will provide the child’s passport within at least 14 days of the mother travelling with the child. The mother will return the child’s passport to the father at the next access exchange after she returns from travel with the child.

(e) The child’s OHIP card will travel back and forth with the child at all times.

(f) The parents may travel without the consent of one another during their parenting vacation time. If they are seeking to travel outside of their parenting vacation time, they must obtain consent of the other party, such consent not to be unreasonably withheld.

(g) The parents will be required to provide notice at least 14 days in advance of a trip within Canada and 30 days in advance of a trip outside of Canada. Each will provide the other with a travel itinerary, copies of return airplane or train tickets, addresses and contact numbers for the duration of the stay and make arrangements (time zones permitting) for the other parent and child to communicate during the trip. If required for a longer trip, a plan for make up time for the other parent will be made prior to departure.

Communication and Information

(a) All communication between the parents shall be respectful. Neither parent shall criticize, demean or make disparaging comments about the other in the child’s presence or in public places.

(b) The parents shall refrain from discussing with the child or a third party in the child’s presence, legal proceedings, or any conflicts between the parents and ensure that all information pertaining to the parents’ separation including all personal correspondence or email communications in respect thereof is not accessible to the child.

(c) The parents will not ask the child to relay information between them. The parents will use the AppClose tool to communicate with respect to childcare issues until they agree otherwise. For time sensitive matters, when the child is ill or during emergencies, the parties will communicate by text or telephone.

(d) Under regular circumstances, each parent will respond to communication within 24 hours. If a reply to a question and/or request for a change requires more time than the agreed to response time of 24 hours, the parents will advise when a response can be expected.

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

(f) Both parents shall have the right to make all inquiries and obtain information regarding the child from all third party professionals including schools, doctors, dentists and other third party professionals treating the child. The father shall execute any authorizations or consents to give effect to this order. All current and future medical and health providers shall be provided a copy of this order.

(g) The parents shall immediately notify each other if the child has 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. Both parents shall be permitted to attend while the child is being treated.

(h) When the child is ill or is residing with either parent for uninterrupted vacation time, the resident parent will provide text updates, and if requested to do so, will facilitate a video call.

Parenting Time Schedule

(a) The mother shall have parenting time with the child as follows:

(i) Consent schedule for the summer of 2024 to continue until Labour Day weekend.

(ii) On September 2, 2024 at noon, the child is to be returned to his father’s care. The Week One Monday overnight for mother will not occur on the first week of school. The schedule begins with the mother’s Week One weekend parenting time from September 6 pick up at school to September 9 drop off at school.

(iii) Week One: The mother shall have Monday from after school, or if no school, 3:00 pm, to Tuesday morning with return to school or if no school, 9:00 am. The mother to have the weekend from Friday after school or if no school, 3:00 pm, to Monday morning with drop off at school or if no school 9:00 am.

(iv) Week Two: The mother shall have Thursday from after school to Friday morning with return to school or if no school, 9:00 am.

(v) Where possible, the change from one parent’s care to the other will take place at school. When school is not occurring or there is a change of care pursuant to the schedule the child will be picked up and dropped off at the mother’s home by the father. 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.

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

(i) Mother’s Day/Fathers Day: Starting in 2025, the child will spend Mother’s Day with the mother and Father’s Day with the father from 9:00 am to 5:00 pm, irrespective of the regular schedule.

(ii) Halloween: On all odd numbered years, the father will have the child on October 31 from school dismissal time until the following morning with a return to school or to which parent is scheduled for that day if not his regularly scheduled parenting time. On all even numbered years, the mother shall have the child on October 31 from school dismissal time until the following morning if not her regularly scheduled parenting time and will return the child to the care parent of the day in accordance with the regular schedule.

(iii) Christmas Break: The parties shall share the Christmas vacation period to be divided into three block periods and shared equally pursuant to the following schedule:

1. Block A shall begin the afternoon that the child is released from the school break, until Christmas Day at 2:00 pm.

2. Block B shall be from Christmas Day at 2:00 pm to New Year’s Day at 2:00 pm.

3. Block C shall be from New Year’s Day at 2:00 pm until the morning the child returns to school.

The father shall have the child in his care for Blocks A and C on odd numbered years and shall have the child in his care for Block B on even numbered years. The mother shall have the child in her care for Blocks A and C on even numbered years and shall have the child for Block B on odd numbered years.

(iv) Spring Break: The regular schedule should prevail unless parents book a vacation with the child. The father will have first choice in all odd years and the mother will have first choice on all even years of taking the child on vacation. If a parent books a vacation, they may take him for the entirety of the March Break which will run from the last day of school dismissal prior to Spring Break and run to the first day back to school following Spring Break.

(v) Summer Vacation: The parties shall share summer equally, according to a week-about schedule. Exchanges will take place in the mother’s lobby every Thursday at 3:00 pm.

Child Support

(a) The father owes the mother $2,627.00 in child support arrears payable within 30 days.

(b) No ongoing child support is payable by the mother to the father.

[160] If the father chooses to seek costs he must serve and file written costs submissions by August 16, 2024. The mother will have until September 6, 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: July 31, 2024 Signed: Justice D. Szandtner