ONTARIO COURT OF JUSTICE
DATE: 2024 10 29 COURT FILE No.: FO-23-00044213-0000
BETWEEN:
H.Y. Applicant
— AND —
A.A. Respondent
Before: Justice Szandtner
Heard on: October 23 and 24, 2024 Reasons for Judgment released: October 29, 2024
Counsel: V. Terentyeva......................................................................................... counsel for the applicant A.A...................................................................................................................... on his own behalf
SZANDTNER J.:
Introduction
[1] The parties participated in a two-day focused hearing on the issues of parenting orders and special and extraordinary expenses.
[2] The parties began living together in June of 2006. They had three children together, born 2007, 2009 and 2013 (the children). They separated in June of 2020.
[3] The applicant H.Y. (the mother) brought her application on August 3, 2023. She sought sole decision-making responsibility, child support, spousal support, special and extraordinary expenses (s.7 expenses), a non-removal order and travel and document provisions.
[4] The respondent A.A. (the father) filed his Answer/Claim on October 4, 2023. He sought sole decision-making, a travel order, parenting time, document provisions, supervised access and a non-removal order for the mother. He opposed the spousal support claim.
[5] On January 8, 2024, the case management judge, Justice C. Jones, made a temporary order on consent of the parties. The order provided as follows:
a) A temporary order for parenting time for the father, specifically day visits on Saturday and Sunday commencing November 24, 2023 and overnight visits on alternate weekends commencing January 13, 2024. b) A temporary non-removal order. c) A temporary order for primary residence of the children with the mother. d) A temporary order for child support payable by the father to the mother of $1,469.00 (based on the father’s income of $73,848.00) commencing July 1, 2023. Arrears was ordered to be paid at a rate of $100.00 per month.
[6] Prior to the commencement of the focused hearing, the parties reported that they had consented to the following final orders:
a) The children shall primarily reside with the mother. b) The father shall pay ongoing child support to the mother for the children commencing October 1, 2024, in the amount of $1,474 on the first day of each month thereafter in accordance with the Child Support Guidelines. c) The father shall pay retroactive child support to the mother in the fixed amount of $6,440.00. The arrears shall be paid commencing October 1, 2024 on the first of each month in the amount of $100.00 until paid in full.
[7] These final orders were made by the court on consent of the parties.
[8] The mother was represented by counsel and the father was self-represented. Somali interpreters were available to the parties and interpreted the proceedings for the mother. The father did not seek interpretation assistance during the hearing.
[9] The parties both filed trial affidavits. The mother called her sister S.Y. as a witness. S.Y. also filed a trial affidavit. The father did not call any witnesses.
[10] Each party had the opportunity to cross-examine the other. The father also cross-examined the mother’s witness. Both parties made opening and closing submissions.
[11] The court must decide the following:
a) What decision-making order is in the children’s best interests? b) What parenting time order for the father is in the children’s best interests? c) What orders with respect to travel and documents are in the children’s best interests? d) What order (if any) for special and extraordinary expenses is in the children’s best interests?
The mother’s position and evidence
[12] The mother is seeking an order for sole decision-making for the children. She seeks an order with a provision that she consult with the father regarding all major decisions related to the children’s education, medical treatments and religious education (if any) prior to making the major decisions regarding the children.
[13] The mother is seeking an order that the father have regular parenting time with the children on alternate weekends during the day. She is seeking an order that the visits be from 10 am to 6 pm and that any overnight visits in the future be at her discretion.
[14] The mother is seeking an order that she may apply for the documentation for the children without the consent of signature of the father. She will keep the original documents in her possession.
[15] The mother is seeking an order that she may travel with the children outside of Canada, without the consent of the father. She will provide an itinerary to the father two weeks prior to the trip. She is also seeking an order that the father shall not travel with the children to Somalia or any other country that is not a signatory to the Hague Convention without the consent of the mother.
[16] The mother relies on the following evidence to support her position:
a) The mother has been responsible for the primary care of the children since their birth. b) The father did not attend the hospital for the birth of the children. She was supported by her sister S.Y. c) The children have always resided with the mother. She was responsible for the domestic tasks. She shopped, cooked and cleaned for the family. She organized the children’s medical appointments, enrolled them in school and attended parent-teacher interviews. d) The eldest child will be graduating high school in June of 2025. He plans to attend university and reside in the mother’s home. The middle child is also planning to attend university while residing at the mother’s home following his graduation. e) The youngest child is currently in Grade 6 and attends school in French. She will be following the pathway of her older siblings to middle and high school in French. f) None of the children have any serious medical conditions or health concerns. They are all under the care of a doctor, dentist and orthodontist. (as required). g) The father’s behaviour within the relationship was controlling, demanding and abusive. He controlled the finances within the relationship. He demanded that the mother be responsible for all of the domestic responsibilities. This included the care of his elderly mother. h) The father verbally abused the mother by calling her derogatory names. He would tell her that she should be grateful that he married her because she is ugly and stupid. He told her that if she complained about him, nobody would believe him, as everyone knows that he is a good man. i) The father was the breadwinner for the family. At times, he refused to buy food or clothing for the children. He would regularly ask the maternal grandmother and her siblings for money that he did not repay. The mother is unclear about the flow of finances during the relationship as they were fully controlled by the father. j) The father was physically abusive to the mother. For example, he choked her on one occasion when she confronted him about cheating on her with another woman. He also pushed her on the bed when she was pregnant with the youngest child. Following the separation, during an argument about tutoring, he pushed her to the floor and sat on top of her until she telephoned her sister for help. These alleged incidents led to criminal charges in 2023. k) Following the parties’ separation in June of 2020, the children have been living primarily with the mother. l) From 2020 to 2022, the father lived in his friend’s basement. He would see the children on some Saturdays and Sundays for 2-3 hour day visits. m) In 2022, the father moved to an apartment in Scarborough. He continued to see the children during the day on some of the weekends. On one or two occasions he took the older children overnight. n) In June of 2023, the father moved to a basement apartment in Whitby and then to an apartment in Pickering. He continued to take the children for a few hours on Saturdays or Sundays. o) In 2024, the father has never taken the children overnight for parenting time. Every other weekend on Saturdays and picks up all three children at random times. He usually takes the children between 1-2 pm and returns them between 6-7 pm. p) The father regularly tells the children that their mother is toxic and that they live in a toxic environment. q) On February 12, 2024, the father confined the eldest son inside his car for several hours and was pressuring him to move in with him. The police were called. During the meeting with police, the mother reported previous domestic abuse and the father was charged. r) On June 2, 2024, the two older children had a fight and the eldest son called the father to complain. The father met the child at a gas station. He tried to convince the child to move in with him. He took the child to the police station and demanded a police escort to pick up the child’s belongings at the mother’s home. The police refused to comply with this request. The eldest son returned to the mother’s home. He did not stay overnight at the father’s home. s) The parties are from Somalia. The father has stated many times that he wants to take the children to Somalia. The mother would be powerless in Somalia should she disagree with the father about the travel or living arrangements for the children. She is afraid that if the children are taken to Somalia by the father, their passports would be destroyed by the father and they would not be able to return to Canada. t) The father has threatened the mother that he would take the children to Somalia. She does not trust the father to travel anywhere outside of Canada, because he could take the children to Somalia from a third country. u) The mother tried renewing the youngest child’s passport in 2022. The father purposely botched his signature on the application and was called by the passport office to sign again as the signatures on the database did not match.
The father’s position and evidence
[17] The father is seeking an order for joint decision-making for the children. He seeks an order that the parties should communicate through AppClose.
[18] The father is seeking a parenting schedule that includes alternating weekends including overnights commencing the summer of 2025.
[19] The father is seeking an order that he have the freedom to travel with his children anywhere in Canada, the US, Europe, Africa and Dubai.
[20] The father relies on the following evidence to support his position:
a) The father denies all accusations of physical abuse. He alleges that they are part of a strategy to undermine his role as a father and limit his access to his children. b) The father was criminally charged with three counts of assault of the mother on April 11, 2024. His current conditions include that he not communicate directly or indirectly with the mother except pursuant to a family court order made after that date or for the purposes of making contact arrangements for, or having contact with, his children through a mutually agreed upon third party. c) The father reports that he has had three online appearances in criminal court since the criminal charges were laid. During these appearances he refused community service and an anger management program that was offered to him. His judicial pre-trial is scheduled for November 15, 2024. d) He describes himself as calm, respectful and trustworthy. e) He attended parent-teacher interviews and doctor’s appointments for the children. f) He ensured that the children participated in extracurricular activities. g) He helped the children with their homework for hours each evening in French, Math, English and Science for the past 15 years. h) He took them to all scheduled vaccinations and dental check-ups. i) He pursued a demanding bank career for 15 years. j) He organized family outings on the weekend. k) He describes himself as a model parent in all respects.
Decision-making Responsibility
[21] 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.
[22] 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.
[23] 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 communicate and co-operate, in particular with one another, on matters affecting 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.
[24] The Ontario Court of Appeal in Kaplanis v. Kaplanis sets out the following principles to consider in determining whether or not a 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.
[25] 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.
Analysis
[26] The mother seeks an order for sole decision-making by her following consultation with the father. The father seeks an order for joint decision-making.
[27] The court has considered the relationship dynamic between the parties and makes the following relevant findings of fact:
a) There has been poor historical communication between the parents on the issues of household financial matters and meeting the children’s basic needs. b) The father has acted in ways to assert his power and control over the mother with respect to finances and family decisions such as their residence. c) The father has denigrated the mother and not respected her as a mother or as a co-parent both in the past and at the hearing. d) The communication between the parents has not improved following the separation. For example, in June of 2024, the father escalated a sibling conflict to involve police instead of contacting the mother and addressing the sibling issue as a united front. e) The mother does not trust the father to act in the children’s best interests. For example, the mother reported that the father botched his signature to delay the daughter’s passport. A second example is the father refusing to submit the orthodontic invoice to his insurer in a timely way, leading to the insurer refusing to reimburse the amount paid.
[28] The court finds that the parties communicate too poorly for a joint decision-making responsibility order to be effective. The required mutual trust and respect is lacking. Making such an order could paralyze important decisions for the children. Any unnecessary delay in decision-making would not be in the best interests of the children.
[29] The father’s desire for information can be met by a provision providing that he can receive direct information from third parties involved with the children. Moreover, he will be advised of any major decision and be provided with an opportunity to express his views to the mother through a consultation provision.
[30] The court finds that it is the child’s best interests that the mother have final sole decision-making responsibility for the child based on the following findings of fact:
a) The mother is the parent better able to provide for the children’s physical, emotional and psychological safety, security and well-being. The children have resided in her primary care for their entire lives. She is and has always been the stay at home parent while the father worked full time. She has taken full responsibility for the domestic sphere. For the past 4.5 years the children have only seen their father for day visits on alternate weekends. The division of responsibilities which assigned the care of the children to the mother has been entrenched and amplified further since the separation in 2020. b) The mother is the parent better able to make major decisions in the children’s best interests. She lives with the children. She sees the children every day and cares for their emotional and physical well-being. The court finds that she is the parent arranging for their medical, dental and orthodontic appointments and ensuring that they attend. She is arranging for academic tutoring as needed and extra-curricular activities according to the interests they express and the needs she identifies. c) The court finds that the mother is the parent more likely to facilitate the other parent’s relationship with the children. The mother has been flexible with regards to the start and end times of the father’s visits with the children on the weekends. She has not opposed overnight visits. The court finds that she supports and values the children’s relationship with their father. d) The father has taken advantage of sibling conflict to attempt to encourage the older child to reside with him. He responded to a sibling incident by bringing the older child to a police station. He sought a police escort into the mother’s home which was denied. This shows extremely poor judgment. It is not in the child’s best interests to escalate a sibling incident with unnecessary police involvement. e) The children are doing well with the current arrangement of their primary care with the mother. She has provided them with a stable home both before and after the separation. The three children have persevered and succeeded in a French school. The two older children are contemplating post-secondary educational plans. They also plan to continue to reside with their mother which reflects their comfort in her care. f) The court finds on the evidence that the father was financially controlling in his relationship with the mother. The mother sets out a pattern of financial control that is credible. At the hearing the father expressed anger at the mother setting up a separate bank account that he was unable to control. g) The court finds on the evidence that the father has an inflated sense of himself as a father and does not respect the significant role played by the mother. In spite of the primary childcare role played by the mother throughout their relationship and after their separation, he did not acknowledge her contribution as a parent in his evidence.
[31] The court order will provide that the mother is to make meaningful efforts to first consult with the father prior to making a major decision for the children.
[32] The court order will permit the father to obtain information directly from the children’s service providers. This will allow the father to be up to date on all school related events and parent-teacher interviews. He can also follow up with any professionals with respect to any medical or dental treatment required by the children.
Parenting Time
[33] 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 above.
[34] Subsection 24(6) of the Act states that in allocating parenting time, the court shall give effect to the principle that the children should have as much time with each parent as is consistent with their best interests.
[35] The parents are both seeking parenting time for the father on alternate weekends on Saturday and Sunday between 10 am and 6 pm. They differ on how they want to address overnights in the future.
[36] The mother is seeking an order that the father’s future overnight visits be at her discretion.
[37] The father is seeking full alternate weekends from Friday night until Sunday night beginning in the summer of 2025.
[38] The court finds that the father has not led any evidence that he has exercised overnight access in 2024. He has not led any evidence to establish how his housing will evolve to be able to accommodate the children overnight by the summer of 2025. Fixing the date for next summer is purely speculative.
[39] The court finds that the transition to overnights should be at the discretion of the mother who will be in the best position to assess the best interests of the children when and if the father is able to accommodate them.
Documents and Travel Orders
[40] Section 28 of the 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.
[41] The mother is seeking an order that she may apply for the documentation for the children without the consent of signature of the father. She will keep the original documents in her possession.
[42] The mother is seeking an order that she may travel with the children outside of Canada, without the consent of the father. She will provide an itinerary to the father two weeks prior to the trip. She is also seeking an order that the father shall not travel with the children to Somalia or any other country that is not a signatory to the Hague Convention without her consent.
[43] The mother is relying on the following evidence:
a) The parties are from Somalia. The father stated many times that he wanted to take the children to Somalia. b) The mother does not want the children to go to Somalia before they are the age of majority. She will be powerless in Somalia, and should she disagree with the father regarding the travel or living arrangements of the children, the father’s word will always prevail. c) The mother is afraid that if the father takes the children to Somalia, their passports would be destroyed and they would be unable to return to Canada. d) The father has threatened the mother that he would take the children to Somalia without her knowledge. e) The mother does not trust that the father would not take the children to a third country outside of Canada and then travel to Somalia. f) The two eldest children are soon to be of age and can travel internationally at that time. g) The mother’s evidence is that the father was uncooperative with the youngest child’s passport application leading to delay and the submission of orthodontic benefits to his insurer leading to a denial of benefits.
[44] The father is seeking an order that the children’s documents may only be obtained or renewed with his consent or signature.
[45] He is also seeking an order that he have the freedom to travel with his children anywhere in Canada, the US, Europe, Africa and Dubai. The father did not respond to the mother’s evidence with respect to her fears with respect to his potential travel with the children to Somalia.
[46] The court finds that the mother’s concerns with respect to the father’s future travel with the children are significant. She has identified a credible risk to the best interests of the children.
[47] The father did not counter her concerns in his evidence at trial. He did not lead any evidence that the risk can be mitigated. The father also did not provide evidence of any specific trips that he was planning for the children and the purpose/destination for same.
[48] The court finds that there is credible evidence of the father being uncooperative with documentation and benefit submission. This supports the assignment of the responsibility for the children’s documents to the mother to ensure that there are no delays in the future.
[49] The court will order that the mother shall be able to apply for and renew government documentation and passports for the children without the consent or signature of the father.
[50] The court orders that the mother shall be at liberty to travel with the children outside of Canada without the consent of the father. She will provide an itinerary of her trip one month prior to the trip and shall provide copies of all plane tickets and contact information during the trip.
[51] The court orders that the father requires the written consent of the mother to travel with the children outside of Canada. He will provide an itinerary of his trip one month prior to the trip and shall provide copies of all plane tickets and contact information during the trip.
Special and Extraordinary Expenses (section 7 expenses)
[52] The mother is seeking s.7 arrears of $850.00 from the father representing 50% of the $1700.00 amount that she paid toward the orthodontic expenses. This represents the amount that was not covered by the father’s benefit plan.
[53] The mother is also seeking an order that commencing October 1, 2024, the father pay 82% of the children’s ongoing s.7 expenses. The expenses shall include medical expenses, not otherwise covered by the father’s extended health benefit plan available through his employer, tutoring expenses and one sport activity per child.
[54] She is relying on the following evidence:
a) She currently receives Ontario Works at $16,177.00 per year. The father’s income is $74,140.00. b) She solely paid for the orthodontic expenses for one child in the amount of $1700.00. She asked the father to reimburse her using his health benefit which he refused. It is now too late to seek reimbursement. c) She enrolled the two older children in Karate in October of 2024. The costs of this activity is $114.00 per month. d) She has hired a math and French tutor for the older children at a cost of $200.00 per child per month.
[55] The father’s position is that he is not in a financial position to pay towards the s.7 arrears requested by the mother of $850.00 representing 50% of the orthodontic expense paid by the mother. He further opposes paying any proportionate share of ongoing s.7 expenses.
[56] An order for contribution to special and extraordinary expenses under s. 7 of the guidelines is discretionary as to both entitlement and amount.
[57] The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under s. 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances. See Park v. Thompson, [2005] O.J. No. 1695 (OCA).
[58] The court has the discretion to apportion the s.7 expenses in a different manner than pro-rata to incomes, depending on the circumstances of the case. Salvadori v. Salvadori, 2010 ONCJ 462, [2010] O.J. NO. 4425 (OCJ); Buckley v. Blackwood, 2019 ONSC 6918.
[59] The mother provided documentary evidence of the expenses which she is claiming for the children. They include past orthodontic costs and ongoing orthodontic, tutoring and karate costs.
[60] The first step for the court to consider is whether the cost of these expenses is more than the mother can reasonably be expected to afford, taking into account her income and the table amount of child support she receives.
[61] In the case before the court, the expenses identified and documented by the mother are sufficiently significant that the court finds that it is more than the recipient can reasonably be expected to afford. They are extraordinary expenses.
[62] The second step is for the court to consider if the expenses are necessary in relation to the children’s best interests and reasonable in relation to the means of the spouses and the child and the spending pattern of the family prior to separation.
[63] The orthodontic work has been recommended by dental professionals and is time sensitive. The tutoring is also necessary for children in high school who have post-secondary aspirations. The request for one sport per child is necessary and reasonable for the children’s physical well-being.
[64] The court finds that the orthodontic, tutoring and karate expenses are reasonable and necessary for the children and are in their best interests.
[65] Accordingly, the parties will share the costs of these expense on a proportionate basis going forward. The father shall pay 82% of the children’s ongoing s.7 expenses.
[66] The father shall pay 50% of the amount payable by the mother for the past braces expense. The s.7 arrears are fixed at $850.00.
Conclusion
[67] A final order shall go on the following terms:
a) The mother shall have sole decision-making responsibility for the children. She shall inform the father and consult with the father regarding all major decisions related to the children’s education, medical treatment and religion. She shall make the final decisions following the consultation. b) The father may seek information directly from any third party professionals (including teachers and medical professionals) involved in the children’s lives and the mother will sign any consents required to permit same. c) The father shall have regular parenting time with the children on alternate weekends from 10 am to 6 pm on Saturday and/or Sunday. Overnight visits are at the discretion of the mother. d) The parties shall communicate with one another using AppClose. e) The mother shall be able to apply for and renew government documentation and passports for the children without the consent or signature of the father. She will provide the father with copies of the documents. f) The mother shall be at liberty to travel with the children outside of Canada without the consent of the father. She will provide the father with an itinerary of her trip one month prior to the trip and shall provide copies of all plane tickets and contact information during the trip. g) The father requires the written consent of the mother to travel with the children outside of Canada. He will provide the mother with an itinerary of his trip one month prior to the trip and shall provide copies of all plane tickets and contact information during the trip. h) The father shall pay section 7 arrears set at $850.00 to the mother for his 50% share of the past orthodontic expense within 10 days of the order. i) Commencing October 1, 2024, the father shall pay 82% of the children’s ongoing s.7 expenses. The expenses shall include medical expenses, not otherwise covered by the father’s extended health benefit plan available to him through his employer, tutoring expenses and one sport activity per child. The mother shall provide all invoices for these expenses within 10 days of their receipt. j) Unless the support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director, and all amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. k) Commencing in 2025 and for as long as support is payable, both parties shall, by July 1, 2025 of each year, provide to each other a copy of his/her income tax returns and notices of assessment and reassessment for the previous year. l) The father shall provide the mother with updating information with respect to his criminal charges within 48 hours of any change. m) All other claims are dismissed.
[68] If the mother seeks costs of this hearing she shall serve and file written submissions by November 15, 2024. The father will then have until December 6, 2024 to serve and file his written response (not to make his own costs submissions). The submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator’s office.
[69] The return date of November 25, 2024 at 4 pm is vacated.
Release Date: October 29, 2024
J. Szandtner