Court File and Parties

Date: November 28, 2024 Information No.: FO-24-00000009-0000 Ontario Court of Justice Family Court

In the Matter of: The Family Law Act, R.S.O. 1990, c. F.3, s. 44

Between:

JOANNA PIATKOWSKA Applicant

- and -

HAROLD WILSON Respondent

Reasons for Judgment

Before the Honourable Justice S. E. J. Paull On November 28, 2024, at WOODSTOCK, Ontario

Appearances: E. Quinto, Counsel for the Applicant Harold Wilson, Respondent, in-person

Thursday, November 28, 2024

Reasons for Judgment

Paull, J. (Orally):

The parties are the parents of one child, Kyler, born […], 2019. This trial focused on what parenting time arrangements are in Kyler’s best interests and what child support obligations flow from that arrangement which included a retroactive claim to May 2021.

The parties agree on the following. They have previously consented to joint decision-making on a final basis. They agree that holidays, including the school summer holiday, are to be shared equally, although there is a difference in the specific shared arrangement proposed. They agree that Mr. Wilson has paid for the entirety of the daycare expenses from 2021 to 2023 and received the tax benefit, as well as paid other amounts of child support. There is also no dispute in the parties’ incomes for support purposes for the years 2021 forward.

The issues to be determined are the following: (1) what were the parenting arrangements from June 2021 to August 2023 and what child support obligations, if any, flow from that; (2) what parenting schedule going forward is in the best interests of Kyler; (3) what is the specific form of the sharing of the school summer and other holidays; (4) what child support obligations flow from the schedule going forward.

Ms. Piatkowska seeks an order that Kyler remain in her primary care with Mr. Wilson having alternate weekend parenting time from Friday to Sunday, and overnight Friday to Saturday on the other weekends. Father seeks a 2-2-3 shared parenting schedule. He takes the position that the parties have maintained a shared parenting arrangement from June 2021 to August 31st of 2023 pursuant to the terms of the parties’ mediation memorandum from the spring of 2021, and that set off child support throughout that period is appropriate. Ms. Piatkowska takes the position that despite the memorandum from mediation a shared arrangement was never in place, and that it only occurred for a few short months at the end of 2022 into early 2023.

The parties began to cohabit in 2014. They were married in April of 2018. They separated November 15, 2020 but remained living in the matrimonial home in Kitchener until May 2021 when that home was sold and both parties moved out. They have one child together, Kyler, and Mr. Wilson has two older children from a prior relationship. When they moved out after selling the matrimonial home, they both moved to Ayr, Ontario. Ms. Piatkowska with her parents; Mr. Wilson with friends for a short time until the home he purchased closed. Kyler was just over 2 months old when the parties separated.

Prior to their physical separation, the parties retained a mediator in the spring of 2021, and the mediation memorandum dated March 22, 2021 was agreed to. In it they agreed to joint and shared decision-making and parenting time with set off child support. The agreement also included a parenting time schedule that Mr. Wilson had Mondays and Wednesdays for three hours and one overnight each week, plus additional times for holidays. This was a two-week rotating schedule which was to be reviewed when Kyler started school. This schedule only continued for approximately two months. After that, from about July 2021 to approximately November 2022, the schedule became: week one, Monday evening, Wednesday overnight, alternate weekends Friday to Sunday; week two, Tuesday evening and Wednesday overnight.

Meanwhile, Ms. Piatkowska moved to Woodstock with Mr. Wilson’s consent in late February 2022 where she remains. Mr. Wilson left his employment at Eclipse in Cambridge and took a job in Woodstock which gave him greater flexibility. At that time, he sought to institute a 2-2-3 schedule. Starting in November 2022 the parties agreed to a 2-2-3 schedule. This went on until approximately July 2023. Meanwhile, father moved to Baden in about June or July of 2023 and left his job in Woodstock and returned to his job at Eclipse in Cambridge. As a result of renovations on his new home in Baden and summer holiday plans, the schedule was somewhat piecemeal with Kyler primarily with his mother for most of that summer but seeing his father until September of 2023.

In September 2023 the parties consented to Kyler starting school in Woodstock. The school is less than five minutes from Ms. Piatkowska’s home. Mr. Wilson remained living in Baden and was back at his old job in Cambridge. His home is approximately a 35 to 45 minute drive from the school depending on the route and the weather conditions.

The parties had discussions prior to Kyler starting school. It was agreed that Kyler would attend bilingual school in Woodstock. Ms. Piatkowska proposed alternate weekends with an overnight in the week. Mr. Wilson took the position that the 2-2-3 schedule should be reinstated. At that time, being September of 2023, there was no before or after school program available in Woodstock despite the parties being on a waiting list since sometime in 2022. Ms. Piatkowska had flexibility with her work, lived less than five minutes from the school and was able to take Kyler to and from school every day. Otherwise, her retired parents were always available and did assist on many occasions. He attended school fulltime from 8:30 a.m. to 2:55 p.m.

Starting in September of 2023, the schedule was alternate weekends Friday to Sunday, the other alternate weekends Friday to Saturday morning. This permitted Kyler to attend skating lessons at his father’s home in Baden on Saturday mornings. This schedule persisted until approximately April 2024.

Starting in April 2024, father requested a change to the schedule as noted in a text message filed in evidence that he wanted his weekends back and requested removal of the alternate Friday to Saturday morning, and to have Kyler for a few hours on Wednesdays after school and work. Skating was over by this point. This schedule persisted from April 2024 to July 7, 2024 when a temporary order was made on consent at a settlement conference where the parties implemented a shared arrangement for the remainder of the summer.

Starting September 13, 2024, father had three consecutive weekends Friday to Monday with drop off at Ms. Piatkowska’s at 8 a.m. The remaining weekend Kyler was with his mother. This has remained the temporary schedule.

I accept the evidence of Ms. Piatkowska as it relates to the schedule in place since May 2021 and the changes and reasons for these changes. She was clear, detailed and remained consistent, and the text messages offered corroborated her evidence.

Mr. Wilson was at times inconsistent in his evidence on the specific schedule but ultimately when challenged did not materially dispute the actual schedule that was in place as outlined by Ms. Piatkowska, although he persisted in referring to it as a shared arrangement. I did not take the inconsistencies in his evidence on these points as indicating a desire to mislead, but rather that, as he acknowledged, there were times that he was not able to recall precise dates and times. The inconsistencies in his evidence were a concern for this court in terms of his ability to accurately recount the parties’ history. Where the evidence of the parties conflicted, the court prefers and accepts the evidence of Ms. Piatkowska.

Both parties acknowledge agreeing to the mediation report and that neither party sought independent legal advice after it was completed. This was unfortunate, as it may have saved the parties from litigating these issues. Despite the parties labelling it as a shared parenting arrangement in the mediation agreement, it clearly was not.

Other than the period of November 2022 to July of 2023 when the 2-2-3 arrangement occurred, no other period comes close to being a shared arrangement or the 40 percent threshold required by Section 9 of the Child Support Guidelines.

Simply labelling an arrangement as shared does not make it so, and neither does it satisfy the onus on Mr. Wilson to establish that the 40 percent threshold was met. The actual schedule in place at all times but for a few short months was not sufficient to invoke Section 9 of the Guidelines, and Kyler was spending a vast majority of time in his mother’s care. Mr. Wilson acknowledges that commencing September of 2023 when Kyler started school that he lived in the primary care of Ms. Piatkowska for child support purposes.

Ms. Piatkowska seeks retroactive child support to May 2021 with Mr. Wilson paying full guideline child support with credit for amounts paid. It was not disputed that the parties operated on the basis of the mediation agreement with a set off for child support purposes. Mr. Wilson paid the entirety of the daycare expenses including, $6,642 in 2021, $9,930 in 2022, and $3,875 in 2023. He received the tax relief as a result as noted in his Notices of Assessment for those years. Ms. Piatkowska also acknowledged that Mr. Wilson paid additional set off child support as follows: $355 a month starting September 2022, $335 a month starting in January of 2023, and $500 a month starting November 1st of 2023. These amounts are in addition to those daycare expenses.

It was clear in the text messages overtime that the parties exchanged financial disclosure and calculated what they believed was the appropriate level of support under the mediation agreement, and that Mr. Wilson has consistently paid it without issue. If Ms. Piatkowska is successful in any part of her retroactive claim, Mr. Wilson is entitled to credit for the amounts he did pay.

The parties’ incomes were also not at issue. For 2021, Ms. Piatkowska’s was $40,052, Mr. Wilson’s was $91,458. For 2022, Ms. Piatkowska’s was $78,310, and Mr. Wilson’s was $98,706. For 2023, Ms. Piatkowska’s was $76,000, and Mr. Wilson’s $114,390. Ms. Piatkowska now has three different teaching and research jobs and may earn somewhat less than this with the hope of increasing it over time. In the circumstances, I am satisfied that for 2024, her 2023 income of $76,000 is the best evidence of income currently. Mr. Wilson was terminated from his employment at Eclipse in May 2024, but his severance package includes paying him the same wage until February 2025. He is very experienced in the welding field and actively seeking employment, and hopeful to have commensurate employment by February of 2025. For 2024, his continuing income of $114,390 represents his income for child support purposes.

Ms. Piatkowska is making a retroactive claim for child support back to May of 2021. As such, the formula in the Supreme Court of Canada case of Colucci v. Colucci, 2021 SCC 24, applies. This case outlines that the presumptive date for retroactivity is starting from the date that the recipient gave effective notice of a claim for support. This can be up to three years before formal notice and requires the recipient to broach the subject. However, vague assertions are not enough.

Ms. Piatkowska was candid in her evidence that she never broached the issue of changing the child support to reflect that there was not a shared arrangement for most of that period. She did not want to create conflict, and it was clear in the texts that she was content to continue to calculate the child support as they had despite the parenting arrangements that were actually in place.

Where there is no effective notice by the recipient, the presumption is a start date of when formal notice was given. In this case, Ms. Piatkowska served her application on February 5, 2024 making the retroactive claim. This was Mr. Wilson’s first notice that Ms. Piatkowska was not satisfied with the payment arrangements that had been made.

The court has the discretion to depart from this date, that being February 5, 2024, if a fair and just result requires it. The court considers the totality of circumstances, including any blameworthy conduct, and endeavors to balance the child’s interest in a fair standard of support, the payor’s interest in flexibility, and the recipient in child’s interest in certainty.

For the following reasons, I am not satisfied that it is appropriate to depart from the date of formal notice back to May 2021. While the recipient wished to avoid conflict, this does not justify delaying providing notice or bringing this claim sooner. The parties, despite their differences, communicated and cooperated on these issues relatively well. While it is clear that the nature of the actual schedule did not warrant a set off of child support under Section 9 of the Guidelines, I do not find blameworthy conduct on the payor’s part. The texts entered as evidence are clear that the parties communicated and exchanged financial information, and that the parties agreed on the amounts payable, and father paid these amounts which included not only set off child support but the entirety of the daycare expenses which grossed a total of $20,477 from 2021 to 2023.

Further, I heard no evidence that the circumstances or needs of the child were compromised in any way. Mr. Wilson paid what was agreed, and both parties are clearly hardworking and successful. Finally, in the circumstances, a retroactive award back to May 2021 would be a hardship on the payor. The parties, albeit erroneously, negotiated and agreed upon child support payable and acted on it in good faith for several years.

However, as of September 1, 2023 when Kyler started school in Woodstock, Mr. Wilson has acknowledged that while he did not agree with this schedule, he did agree that Kyler was in Ms. Piatkowska’s care to an extent that supported full guideline support. In these circumstances, he knew or ought to have known that the set off child support was no longer the appropriate amount. Considering all these factors, the court will exercise its discretion to depart from the presumptive date and fix September 1, 2023 as the date for retroactive support to begin. He will be required to pay full guideline support retroactive to that date. The remaining claims for retroactive support are dismissed.

Mr. Wilson is responsible for child support from September 1, 2023 and monthly thereafter at a rate of $1,023 per month on an income of $114,390. He paid $335 in September and October of 2023 and $500 a month since then. Therefore, arrears up to November 30, 2024 are fixed as follows: 15 months at $1,023 equals $15,345 minus amounts paid of 2 months at $335 and 13 months at $500 which totals $7,170. Arrears in retroactive and ongoing support up until the end of November 2024 total $8,175. He will satisfy these arrears by a minimum payment of $400 per month until paid in full commencing December 1, 2024.

With respect to the parenting arrangement to be put in place going forward, any proceeding with respect to children is determined based on 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 court has considered these factors.

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 wellbeing” in determining best interests. Subsection 24(3) of the Act sets out the list of factors for the court to consider related to the circumstances of the child.

The list of best interest considerations in the Act is not exhaustive (White v. Kozun, 2021 ONSC 41). It is also not a checklist to be tabulated with the highest score winning. It calls for the court to take a holistic view of the child his or her needs and the persons around the child (Phillips v. Phillips, 2021 ONSC 2480. Pereira v. Ramos, 2021 ONSC 1736). An assessment of the best interests of the child must take into account all of the relevant circumstances with respect to the needs of the child and the ability of each parent to meet those needs (Mokhov v. Ratayeva, 2021 ONSC 5454).

The court must ascertain the child’s best interest from the perspective of the child rather than that of the parents (Gordon v. Goertz, 1996 SCC 191). Adult preferences or “rights” do not form part of the analysis except in so far as they are relevant to the determination of the best interests of the child (Young v. Young, 1993 SCC 34). In considering the bests interests of a child, it is important to consider if a parent will follow the terms of a court order (Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201).

Subsection 24(6) which replaces the maximum contact principle states that “in allocating parenting time, the court will give effect to the principle that a child should have as much time with each parent as is consistent with their best interests.” The starting point in assessing a child’s best interests when making a custody and access order is to ensure that the child will be physically and emotionally safe. It is also in the child’s best interests when making parenting time orders that his or her caregivers be physically and emotionally safe (I.A. v. M.Z., 2016 ONCJ 615).

A shared parenting plan requires a high level of communication and coordination between the parties, particularly when the child is young. The parents will have to coordinate school, medical and extracurricular activities. This should not be ordered where the evidence indicates that implementing such plan given the dynamics of the parties would be an invitation to conflict and chaos and would thus be destabilizing for the child (L.B. v. P.E., 2021 ONCJ 114; L.I.O. v. I.K.A., 2019 ONCJ 962).

The court’s unrelenting focus on the best interests of each particular child means that there is no presumption in favour of any one type of parenting order. All things being equal, each child deserves to have a meaningful and consistent relationship with both parents (E.M.B. v. M.F.B., 2021 ONSC 4264; Dayboll v. Binag, 2022 ONSC 6510).

The best interests of children have been found to have been met by having a loving relationship with both parents, and that such a relationship should be interfered with only in demonstrated circumstances of danger (Klymenko v. Klymenko, 2020 ONSC 5451). A custodial parent must not only accommodate access and parenting time, they must facilitate it (Scrivo v. Scrivo, 2012 ONSC 2727, 2012 CarswellOnt 5545; Tran v. Chen, CarswellOnt 8551). The right of a child to visit with a non-custodial parent and to form an attachment to that parent is a fundamental right of the child (D.G. v. A-G.D, 2019 ONCJ 42; Ayub v. Al-Haq, 2022 ONSC 7054).

Ms. Piatkowska seeks primary residence with regular parenting time to Mr. Wilson. She resides less than five minutes from the school. She is available before school every day. She is often available after school given her teaching and research schedule, and if she is not, her parents have remained available.

Mr. Wilson seeks a 2-2-3 shared schedule. He hopes to find a job that will give him some flexibility, and he continues to reside in Baden, 30 to 45 minutes one way from the school. He would like to use the before and after school program to care for Kyler when he returns to work but acknowledged that he has taken no steps to get back on the waiting list.

Both parents have strengths. They are both hardworking and loving and kind parents. They both have extended families who love and support Kyler. While the parties have different parenting and communication styles, and have had their issues and disagreements at times, they have had relative success in maintaining stability for Kyler as separated parents, and they generally communicate often and respectfully. They have both shown that they can shield Kyler from any potential conflict they have, and there was no evidence that Kyler has been exposed to parental conflict by either parent.

They have also both shown cooperation and flexibility when required to adjust the arrangements, even when they were not arrangements that they necessarily agreed with. This court has not been asked to make any temporary orders on an argued basis in this matter which suggests and supports that notion that there has been a reasonable level of cooperation and flexibility.

Overall, this is a case where despite their separation the parties have been and can remain successful co-parents. However, for the following reasons, I am of the view that Kyler’s best interests at present do not support a shared parenting arrangement.

The parents had a memorandum of understanding from mediation, which is not a separation agreement and was not made into a court order. It stated that the parties had a shared parenting arrangement. Despite this label, the schedule in that memo and the changes to that schedule implemented by the parties over time do not amount to shared parenting. Apart from the 7 or 8 months from November 2022 into July 2023, Kyler was clearly residing primarily with his mother since the parties physically separated in May of 2021. This represents a lengthy status quo.

Further, despite the memorandum referencing neither party’s home being Kyler’s primary residence, his primary caregiver was clearly his mother since separation. Simply labeling an arrangement as something does not make it thus. In terms of the history of his care, I am satisfied that Ms. Piatkowska has and remains Kyler’s primary parent, both in terms of the parenting schedule and involvement with Kyler’s health, education and welfare.

While Mr. Wilson may have had some involvement in these issues over time, he did not know the names of Kyler’s doctor or dentist, did not know the names of Kyler’s teachers last year or this year, and the only contact with the school he has had was during an orientation in September of 2023. He has not attended parent teacher interviews or other activities at the school since. Ms. Piatkowska has been the primary contact and attended school-related events and meetings. This is not to say that Mr. Wilson is not a loving and capable father, but simply that he has chosen to be less involved and informed on matters related to Kyler.

Further, I am satisfied that Ms. Piatkowska has taken active steps despite the parties’ differences to ensure that Kyler remains connected with his father. The parties communicated almost every day with Kyler when in the other’s care, and communicated with each other when needed. Ms. Piatkowska has been flexible on weekend time so that, for example, Kyler was able to attend skating lessons in Baden on Saturday mornings.

Most importantly, I am not satisfied that the Mr. Wilson’s plan to commute with Kyler for between one and one and a half hours each school day and for him to spend additional time in the before and after school daycare program is in Kyler’s best interests.

Kyler has his mother available every day before school, and generally after school. She resides less than five minutes from the school. Her plan does not require daycare or commuting for what is likely to total well over two hours of each school day. Mr. Wilson’s plan puts an undue burden in this regard on Kyler. Further, Mr. Wilson has not taken steps to arrange before and after school care and acknowledged that there is likely a lengthy waiting list.

The purpose is not to reward or punish either parent, but to put in place a plan that best meets Kyler’s interests. If Mr. Wilson lived and worked in Woodstock, this court may very well have ordered some manner of shared parenting. However, Kyler’s close relationship with his father will be fostered by frequent and meaningful parenting time and a sharing of holiday time including summer holidays. I agree with Mr. Wilson that the summer holidays should be split on a week about basis. This makes it easier for both parties to plan activities for Kyler and their own holidays with him.

I also agree that all other holidays including Christmas should be shared equally and on a rotating basis so that Kyler may experience Christmas with each parent and their extended families and be exposed to their different cultural practices and traditions. Mr. Wilson’s parenting time shall also include alternate weekends from Friday to Sunday. I agree with him that a further evening visit during the week is also appropriate. There will be one evening visit during the week from 4:30 p.m. to 7:30 p.m. or otherwise as agreed if Mr. Wilson’s work schedule can accommodate it.

Regardless of the schedule, Ms. Piatkowska will have Kyler on Mother’s Day starting at 2:30 p.m. if it is not her weekend, and Mr. Wilson will have Kyler on Father’s Day from 2:30 p.m. to 7:30 p.m. if it is not his weekend. He will also have one additional Friday night to Saturday morning at 11 a.m. per month on a weekend as agreed between the parties. There will be any additional parenting time as agreed between the parties, and they are encouraged to continue to be flexible, particularly when Mr. Wilson’s new work schedule is known. The child shall remain in Ms. Piatkowska’s primary care at all other times.

As a result of this parenting arrangement, Mr. Wilson shall pay ongoing child support to Ms. Piatkowska for one child commencing December 1, 2024, and monthly thereafter at a rate of $1,023 per month on his 2024 income of $114,390.

For oral reasons given, a final order shall issue as follows:

1. The child shall remain in the primary care of the applicant.
2. The respondent shall have liberal and generous parenting time, including the following unless agreed otherwise by the parties: a. Alternate weekends, Friday after school to Sunday at 7:30. b. One evening during the school week from 4:30 p.m. to 7:30 p.m. or otherwise as agreed between the parties. c. One additional Friday overnight per month from after school to Saturday morning at 11 a.m.
3. The school summer holidays shall be shared on a week-on-week-off basis.
4. For the Christmas holiday, the parties shall rotate having December 24th at 3 p.m. to December 25th at 10 a.m. The remaining school holidays shall be split equally as agreed between the parties. Starting in 2024 and even years thereafter, the respondent shall have Christmas Eve to Christmas morning. All other holidays and special occasions shall be shared on a rotating basis pursuant to draft order Exhibit 45 terms 4(a), (d), (e), (h) and (i).
5. Regardless of the schedule, the respondent will have parenting time on Father’s Day from 2:30 p.m. to 7:30 p.m. If Mother’s Day falls on one of the respondent’s weekends, the child will be returned to the care of the applicant by 2:30 p.m. on Sunday, and there will be any other parenting time as agreed between the parties.
6. Terms 7 and 8 of Exhibit 45 related to the application for a passport and both parties’ ability to travel with the child for the purposes of a holiday shall also issue.
7. The respondent to pay child support to the applicant for one child commencing December 1, 2024, and monthly thereafter at a rate of $1,023 per month on his 2024 income of $114,390.
8. Arrears in child support up to November 30th, 2024 are hereby fixed in the amount of $8,175 repayable at a minimum rate of $400 per month commencing December 1, 2024 until paid in full.
9. The parties shall share in proportion to their income any special or extraordinary expenses for the child, provided that the parties agreed to the expense in advance in writing. The other party will reimburse the party incurring the expense within ten days of receiving the receipt. The applicant’s proportionate share is 40 percent based on an income of $76,000. The respondent’s proportionate share is 60 percent based on his income of $114,390.

All other claims are dismissed and an SDO shall issue.

End of Excerpt of Proceeding