DATE: April 23, 2025

COURT FILE NO. D44395/23
ONTARIO COURT OF JUSTICE

B E T W E E N:

T.R.
ACTING IN PERSON
APPLICANT

• and –

S.G.
OLAYEMI AYOOLA, for the RESPONDENT
RESPONDENT

HEARD: APRIL 14-15, 2025
JUSTICE S.B. SHERR

REASONS FOR DECISION

Part One – Introduction

[1] This trial was about the parenting and child support arrangements for the parties’ 13-year-old daughter (the child).

[2] The applicant (the mother) seeks primary residence and sole decision-making responsibility for the child. She also seeks other incidents of decision-making, including the right to obtain and renew government documentation for the child and to travel internationally with the child, without the respondent’s (the father’s) consent. She asked for a defined parenting time schedule for the child, subject to her discretion and the child’s discretion.

[3] The mother also seeks child support, including a contribution to the child’s special and extraordinary expenses (section 7 expenses), pursuant to section 7 of the Child Support Guidelines (the guidelines), retroactive to January 1, 2021. She is content to use the income the father reported to the Canada Revenue Agency (the CRA) for the years 2021 to 2023, but seeks to impute his annual income at $76,000, for the purpose of this calculation, starting on January 1, 2024.

[4] The mother proposes that the father pay any arrears created by this order at $1,000 each month.

[5] The father’s positions were a moving target. He provided the court with a draft order for trial. He changed several of those positions in his opening statement and his position about decision-making responsibility changed during his testimony.

[6] The father agreed at the outset of the trial that the child’s primary residence should be with the mother and that the mother should have sole decision-making responsibility for her, except for major educational decisions.[1] The father seeks an order that the parties have joint decision-making responsibility regarding the child’s major educational decisions, and if they disagree, he makes the final decision.[2]

[7] The father proposed a parenting time schedule for alternate weekends and extended holiday time with the child. He asked that the child spend five weeks with him in the summer.[3] The father also sought orders regarding travel and communication.

[8] The father asked that the mother share in transportation arrangements for parenting exchanges.

[9] The father agreed in his opening statement that he should pay the guidelines table amount for child support, starting on July 1, 2021, in accordance with the annual income he has reported to the CRA.[4] He opposed paying any past section 7 expenses. If any are ordered, he asks that the mother contribute to a psychological assessment he paid for the child in 2021. He asks that future section 7 expenses be paid equally by the parties, but only if the parties have consented in advance to incurring the expense.

[10] The father seeks retroactive child support from March 2020 until February 2021. This is when he says the child lived with him. He asked to set off this amount from any support the court finds he owes to the mother.[5]

[11] The child lives with the mother. She sees the father infrequently.

[12] Both parties testified and were cross-examined. No other witnesses were called.

[13] The issues for the court to determine are as follows:

a) What parenting orders are in the child’s best interests? In particular:
(i) What decision-making responsibility orders are in the child’s best interests?
(ii) What parenting time orders are in the child’s best interests?
(iii) What incidents of parenting and terms of communication are in the child’s best interests?

b) How much child support should the father pay to the mother? In particular,
(i) What is the presumptive start date for child support?
(ii) Should the court depart from the presumptive start date, and, if so, to when?
(iii) What is the father’s annual income for each year that support is ordered? What, if any, income should be imputed to him in any of those years?
(iv) What amount, if any, should the father pay to the mother for the child’s section 7 expenses?

c) Should the court order the mother to pay retroactive support to the father, and if so, how much? In determining this issue, the court again must determine the presumptive start date that child support should start and whether it should depart from that date.

d) What arrears are owing by the father to the mother and how should they be paid?

Part Two – Background facts and court history

[14] The mother is 53 years old and lives with the child in Toronto, Ontario. She works at a group home as a residential support worker.

[15] The father is 54 years old and lives in Bradford, Ontario. He works as a heavy equipment operator.

[16] The father was born in Ottawa and is of French heritage. He is bilingual.

[17] The mother is not bilingual.

[18] The parties cohabited from 2010 to June 2016.

[19] The child’s residential history with her parents has been as follows:
a) June 2016 until May 2017, with the mother.
b) May 2017 until September 2018, with the father.
c) September 2018 until March 2020, with the mother.
d) The child was with the father at the start of the pandemic in March 2020. The parties disagree about how long the child was with him. The mother says the child was with him until the end of June 2020. The father says the child was with him until February 21, 2021.
e) With the mother since June 2020, according to her, and since February 21, 2021, according to the father.

[20] The child has special needs. She has been diagnosed as being autistic and as having a learning disability. She has an independent education program (IEP) at school. She went to a Catholic French school through grade 6. She switched to a private English school (Brighton) in grade 7. She is now in a public English school in grade 8.

[21] The mother issued this application on September 18, 2023. The father was served on September 26, 2023.

[22] The father did not respond to the application within the time required in the Family Law Rules. The mother filed a Form 23C affidavit for an uncontested trial. On November 14, 2023, Justice Carolyn Jones declined to proceed on an uncontested basis, without prejudice to the mother’s right to renew the request if the father did not attend the next court appearance.

[23] On January 10, 2024, the mother consented to an order extending the time for the father to serve and file his Answer/Claim.

[24] The father did not meet that filing deadline. He moved for another filing extension. On February 26, 2024, Justice Jones granted this request, on terms. She endorsed that the father had not filed any financial information since being served with the application five months before. She ordered him to pay child support of $500 on both March 1, 2024, and on April 1, 2024, and to serve and file specified financial disclosure.

[25] On April 9, 2024, Justice Jones dismissed a Form 14B motion brought by the father seeking substantive parenting orders. She noted he had still not filed an Answer/Claim, despite the two extensions granted. The mother’s request to proceed with an uncontested trial was adjourned to the scheduled court appearance the following day.

[26] On April 10, 2024, Justice Jones declined the mother’s request to proceed on an uncontested basis. She made temporary without prejudice orders including:
a) The child’s primary residence shall be with the mother.
b) The father shall pay temporary child support to the mother of $590 each month, based on his 2023 income of $63,556, starting on May 1, 2024.
c) The father shall provide specified financial disclosure to the mother.
d) The father has one more extension to file his Answer/Claim.
e) The return date is peremptory on the father.

[27] The father subsequently served and filed his Answer/Claim.

[28] On July 10, 2024, Justice Jones gave the father leave to bring temporary parenting motions. She set filing timelines.

[29] The father did not comply with the filing timelines. He sought and obtained a filing extension.

[30] On August 13, 2024, on consent, Justice Jones made temporary parenting orders. They included:
a) The father shall have alternate weekend parenting time with the child.
b) The father is prohibited from calling the mother’s place of employment.
c) The father shall pay costs of $1,000 to the mother.

[31] Justice Jones also referred the parties to mediation. The mother completed her mediation intake. The father did not. The mediation did not take place.

[32] On January 28, 2025, Justice Jones made orders requiring the father to provide further financial disclosure. Including the Automatic Order that is issued with the application, this was the fourth financial disclosure order made.

[33] The father has had sporadic parenting time with the child since the middle of 2023. The parties disagree on why the parenting time has been so infrequent.

[34] The amount of $7,080 ($590 x 12 months) for child support has accrued pursuant to the temporary order of Justice Jones. The father has paid $4,125, leaving him $2,955 in arrears of support under that order.

Part Three – Parenting orders

3.1 Legal considerations

[35] Subsections 24 (2) to (7) of the Children’s Law Reform Act (the Act) set out factors for the court to consider in determining a child’s best interests. The court has considered the relevant factors in those subsections in this decision.

[36] Section 28 of the Act sets out the types of parenting orders the court can make.

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

[38] The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. See: Gordon v. Goertz. Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child. See: Young v. Young; E.M.B. v. M.F.B., 2021 ONSC 4264; Dayboll v. Binag, 2022 ONSC 6510.

[39] A starting point to assess a child’s best interests when making a parenting order is to ensure that the child will be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615. Also see: Armstrong v. Coupland, 2023 ONSC 5451; N.D. v. R.K., 2020 ONCJ 266.

[40] In considering a child’s best interests it will often be important to determine if a parent will follow the terms of a court order. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201; Seyad v. Pathan, 2022 ONCJ 501; Mulik v. McFarlane, 2023 ONCJ 148.

[41] A party's failure to protect a child from conflict may be an important consideration in granting primary residence or decision-making responsibility to the other parent. See: [Dayboll v. Binag, supra]; I.A. v. I.G., 2023 ONCJ 523.

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

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

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

3.2 Summary of the parties’ narratives

3.2.1 The mother’s narrative

[45] The mother deposed that:
a) The child has been diagnosed with autism and a learning disability. She is a very sensitive child who has anxiety. She has difficulties navigating stress and conflict. She thrives on routine, structure and emotional safety.
b) She is the parent who has attended to all of the child’s significant needs since at least the start of 2021. She is the parent who meets with her teachers, participates in her IEP meetings, arranges her medical care, attends with her at medical appointments, obtains services for her, works with the professionals servicing her, arranges her camps and her extra-curricular activities.
c) She is the parent who pays for all these services.
d) The father has been hostile to her when she has sought any contribution to the child’s expenses.
e) The father paid no child support until Justice Jones ordered it on April 10, 2024.
f) Since the middle of 2023, the father has exercised his parenting time inconsistently and unpredictably. He often goes weeks and months without seeing the child. He often cancels at the last minute. He will not respond to texts to arrange parenting time. He will then attend and demand his parenting time.
g) The father minimizes the child’s special needs and is insensitive to the child’s feelings. The child has social anxiety and needs calm and sensitive parenting.
h) The father is single-minded. He is hyper-focused on the child’s French heritage to the exclusion of her other needs.
i) The father is harsh, critical and often verbally abusive towards the mother. He demands getting his own way. She sees him as controlling and manipulative.
j) The father tries to undermine her parenting. He calls the Children’s Aid Society and the police when he is upset with her. He demeans her to the child. This upsets the child.
k) The child is reluctant to spend time with the father. The mother tries her best to encourage the child to see him. However, it is becoming increasing difficult to convince her to see him.
l) She switched the child from the French Catholic school to Brighton for grade 7 because the child was struggling at the French school, not keeping up, felt like an outcast and was very unhappy. She said the child received more support at Brighton and did much better. She said it gave the child the confidence to return to a public English school for grade 8. The child is doing very well in her current school. She has an IEP.
m) She discussed the child’s academic struggles with the father, but he was resistant to any schooling option other than the French school.
n) She switched the child back to a public school for grade 8 because she could no longer afford Brighton without any financial contribution from the father.
o) The father was outraged when she had the child attend a specialized camp (Camp Kodiak) for children with autism in 2022 because the camp required the child to be vaccinated. He became hostile with the camp staff and the camp had to get its lawyers involved. The child continues to attend and benefit from this camp. The father refuses to contribute to its cost.
p) The father is demanding, exhausting and impossible to deal with.

3.2.2 The father’s narrative

[46] The father had a much different narrative than the mother. He deposed that:
a) He is a good and capable father. He said he primarily cared for the child for over one year starting in May 2017 and for eleven months after the pandemic started.
b) The mother is alienating him from the child.
c) The mother has frustrated his parenting time with the child. She will not pass his messages on to her. She blocks his calls and she is hostile to him.
d) The mother has excluded him from participating with the child’s schools, doctors and service providers.
e) The mother makes major unilateral decisions about the child without his consent. She unilaterally changed the child from her French Catholic school to Brighton and then switched her back to an English public school. She put the child in Camp Kodiak without his consent. This interfered with his parenting time.
f) The mother had the child vaccinated for Camp Kodiak without his consent.[6] He feels this has placed the child at significant medical risk.
g) The mother does not value his relationship with the child.
h) The child makes excuses to avoid seeing him and the mother does nothing about this.
i) The mother is a flawed parent. He said that:
i) She does not provide proper clothing for the child.
ii) She often leaves the child alone.
iii) From 2021 to 2023, the child missed too much school. This compromised the child’s education.[7]
iv) The child will be going to high school next September. This means she will change schools again. It will be her fourth school in four years. This disruption is particularly harmful for a child with autism.
v) She makes irresponsible financial decisions regarding the child and expects him to pay for them.
vi) She did not act when the child was being bullied in school in January 2025. He had to address the issue with the school.
j) The mother does not promote the child’s French heritage. He wants to educate the child about this. He only speaks French to her in his home. He wants the child to be fully bilingual so she can have occupational advantages when she becomes an adult.
k) He is the parent best suited to make major educational decisions for the child.
l) He did not pay child support to the mother because of his difficult financial circumstances and because she did not pay him child support when the child lived with him.

3.3 Assessment of the parties’ evidence and findings on contested facts

3.3.1 The mother

[47] The mother readily admitted that she is “terrible with dates and numbers”. This affected the reliability of her evidence when it came to those details.

[48] The court found the mother to be a very credible witness. She answered questions thoughtfully and in a balanced manner. She admitted her challenges, including candidly admitting she was overwhelmed parenting the child and had mental health challenges in 2017. This is why the child lived with the father until September 2018.

[49] The mother answered questions directly and to the best of her ability. She was not evasive or argumentative.

[50] The mother demonstrated a deep understanding of the child, including the child’s needs, strengths and challenges.

[51] The mother has worked tirelessly to obtain the services and supports the child needs to succeed. The child is improving academically and socially. She is thriving in the mother’s care.

[52] The mother is the consistent parent in the child’s life. She is the parent who is there daily for her and who meets her physical, emotional and developmental needs.

[53] It was apparent that the mother is the parent with the closest connection with the child.

[54] The court finds that the mother has made informed and responsible decisions for the child.

[55] The mother has accomplished this with inadequate financial support from the father. She has also accomplished this despite the father attempting to undermine her parenting by making unsubstantiated reports about her parenting to the Children’s Aid Society and the police.

[56] The court finds that the mother is doing her best to facilitate the child’s relationship with the father. She is not alienating the father from the child, and she is not frustrating his relationship with the child.

[57] The mother values the child’s French heritage. She is pleased the child speaks French in the father’s home and she supports this. However, given the child’s special needs and struggles at the French school, she appropriately made the decision to enroll the child in an English school where she was able to succeed.

3.3.2 The father

[58] The father was neither a reliable nor a credible witness.

[59] The court found the father to be evasive when asked difficult questions. He testified through a prism that he can do no wrong and that the mother is a bad parent. This skewed the reliability of his evidence.

[60] The father’s financial conduct in this case undermines his credibility. He:
a) Has vigorously resisted supporting the child.
b) Delayed providing basic and uncomplicated financial disclosure to the mother. Four financial disclosure orders were required. Even then, financial disclosure was still being provided at trial.
c) Has been deliberately under-employed to avoid his support obligations. This will be set out in more detail when discussing child support below.
d) Paid no child support until ordered to do so by Justice Jones on April 10, 2024. Instead, in October 2023, he bought a Porsche vehicle, the month after he was served with the mother’s application.
e) Has only partially paid the support ordered by Justice Jones.

[61] The court finds that the father’s failure to support the child and provide financial disclosure was intentional and manipulative. It was financial abuse designed to wear the mother down.

[62] The father’s misconduct is not limited to the financial issues. He refused to sign a consent for the mother to obtain a passport for the child until “I was forced to do so by the court”. He said he refused to consent to her obtaining the passport because he does not trust her.

[63] The court also finds that the father maliciously called the police and the Children’s Aid Society. It was likely he did this to emotionally hurt the mother and to improve his litigation position.

[64] The father’s evidence was at times inconsistent. For instance:
a) In his trial affidavit, he deposed he lives with his girlfriend in Bradford. At trial, he said he lives alone and his relationship with his girlfriend is off and on.
b) He said he was being denied parenting time. However, he acknowledged he had not seen the child for over five weeks in 2025 because he was at a training course. He also acknowledged telling the mother he was not seeing the child because, “he could not afford to put gas in the car”.
c) He said he objected to the child attending Camp Kodiak because he was not adequately consulted about the camp in advance. However, when he testified, he made it clear that his main objection to the camp was its requirement that the child be vaccinated to attend.
d) The father’s financial statements contradicted his evidence that his income has substantially gone down. This will be reviewed in more detail below when child support is discussed.

[65] The father’s presentation at trial was the strongest corroboration of the mother’s evidence about how difficult he is to deal with. The court observed the following about the father:
a) He is a very angry man. He is angriest at the mother. He is angry at the child for not seeing him. He is angry at the court system which he feels has frustrated his relationship with the child. He was angry at one of his last employers. He said the RCMP contacted him about alleged harassment of this employer. He was angry at Camp Kodiak for requiring the child to be vaccinated and jeopardizing the child’s health.
b) He spent considerable time lecturing the mother at trial, even when asked simple questions. He tried to control her examination of him. He often tried to parse the meaning of words when he was asked simple questions. This conduct kept proving the mother’s narrative of how difficult her interactions are with him and how controlling he is.
c) He was often demeaning to and sarcastic with the mother. His responses to the mother’s questions were often harsh, terse and given in an aggressive tone.
d) He spent little time discussing the child’s needs at the trial, other than her need for a French education. He was much more focused on the injustices done to him and the mother’s flaws.
e) He demonstrated little insight into the child’s needs at trial.
f) He minimized the child’s challenges. He disagreed with several aspects of the psychological report he obtained for the child in 2021.[8] He disagrees with the report’s comments about the child’s difficulties with handling changes and social situations. He felt her struggles at the Catholic French school were entirely due to her absences for illness. He would not allow for the possibility that her struggles could be for any other reason.
g) He had little knowledge of the services and medical care the child has been receiving. He has never attended an IEP meeting, or any of the child’s speech, occupational or educational assessments. He is not involved in any meaningful way with her care.
h) He minimized the mother’s efforts to try and address the child’s special needs. He often referred to her efforts with sarcasm. When asked if Brighton specialized in children with autism, he answered, “that is what I read on their website”. When asked if the child had improved at that school, he answered, “that is what is on the report card”. When asked if Camp Kodiak specialized in children who have autism, he again answered that is what he read on their website. He then said, “I choose me over camp”.
i) When the mother asked him if he replied to her updates and notices about the child, the father answered, “depends what they are”.
j) He demonstrated little empathy towards the child’s feelings. He said, “I put her feelings secondary behind her education”.
k) He was rigid and single-minded. He has strongly held views. He strongly opposed the child being vaccinated. He believes that single fathers are better parents than single mothers.
l) He was absolutely certain of the correctness of everything he was saying.
m) He felt justified in making reports to the society and the police. The court finds these calls were overreactive and malicious.
n) He has no respect for the mother. He was very critical of her, but has not offered alternative ideas to meet the child’s special needs. He certainly has never offered to pay for them.
o) He showed little respect for court orders. He is well behind on his support payments pursuant to the April 10, 2024 order of Justice Jones. On August 13, 2024, Justice Jones ordered the parties to communicate in a respectful manner. The next day the father wrote the mother the following:
Take accountability for your choices T![9]
Have you been drinking again? You are clearly impaired.
I don’t care about your stupidity.
Put (the child) on the phone instead of your useless gibberish.
p) He is very dramatic. When he found the child home alone in October 2023, as she was sick and not in school, his immediate response was to call the Children’s Aid Society and the police. When discussing his concerns about the child being vaccinated, he described her as being exposed to medical experimentation. He testified in response to another question:
My basic job is the protection of my child. If my child is raped I want her to know she has a father she can rely on and not keep secrets from me.
q) He is strident and demanding. It was easy to understand why the mother and the child are reluctant to engage with him.

3.3.3 Further findings of contested fact

[66] The court preferred the mother’s evidence and narrative over the father’s evidence and narrative where it conflicted.

[67] In addition to the findings of fact made above, the court finds the following:
a) The father has chosen to sporadically exercise his parenting time with the child, often going weeks and months without seeing her. He demands to see her when it suits him.
b) The child has been adversely affected by the father not exercising consistent parenting time.
c) The father is rigid and demanding with the child.
d) The child has limited emotional resources to deal with the father.
e) The child is reluctant to see the father or engage with him.
f) The father shows little, if any, empathy towards the child’s needs. He also shows little regard for her feelings. Rather, he dismisses, or minimizes them.
g) The child’s estrangement with the father is justified.
h) The mother is not alienating the child from the father.
i) The father has perpetrated family violence by his emotional and financial abuse of the mother and by his controlling conduct.
j) The father’s criticisms of the mother’s parenting have no merit.
k) The father has been an anchor to the mother’s attempts to effectively parent a special needs child.
l) The mother is doing an excellent job meeting the child’s needs in difficult circumstances.

3.4 Decision-making responsibility

3.4.1 Legal considerations

[68] The court has considered the best interest factors set out in Part 3.1 above in determining the issue of decision-making responsibility.

[69] The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275 (OCA), sets out the following principles in determining whether a joint decision-making responsibility order is appropriate:

1. There must be evidence of historical communication between the parents and appropriate communication between them.
2. It can’t be ordered in the hope that it will improve their communication.
3. Just because both parents are fit does not mean that joint custody should be ordered.
4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
5. 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.
6. The younger the child, the more important communication is.

[70] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. See: Griffiths v. Griffiths, 2005 ONCJ 235, 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop.

[71] Mutual trust and respect are basic elements for a joint decision-making responsibility order to work effectively. See: G.T.C. v. S.M.G., 2020 ONCJ 511; Shokoufimogiman v. Bozorgi, 2022 ONSC 5057; El Khatib v. Noun, 2023 ONSC 1667.

[72] Families that require constant intervention by Children’s Aid Societies and the police due to high conflict are poor candidates for joint decision-making responsibility or parallel parenting orders. See: S.A. v. Y.M., 2020 ONCJ 147; [Dayboll v. Binag, supra].

[73] In paragraph 504 of Izyuk v. Bilousov, 2011 ONSC 6451, 2011 CarswellOnt 12097 (SCJ), the court writes:

In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children- particularly children already exposed to the upset of family breakdown- look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

[74] Financially supporting one’s children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint or shared parenting order as it demonstrates poor judgment and an inability to prioritize the child’s interests. See: Jama v. Mohamed, [2015] ONCJ 619; McBennett v Danis, 2021 ONSC 3610; Shokoufimogiman v. Bozorgi, 2022 ONSC 5057.

3.4.2 Analysis

[75] The mother seeks an order for sole decision-making responsibility for the child. She also seeks orders that she can obtain or renew government documentation for the child and travel internationally with her without the father’s consent.

[76] The father seeks joint decision-making responsibility over the child’s education, with final authority to make those decisions if the parties disagree.

[77] The child’s French culture is important. The mother has no objection to the father speaking French to the child in his home and training her in her French culture and heritage during his parenting time.

[78] There is no longer an issue regarding whether the child should attend a French school. The father said the child has been out of that system for too long and would not be able to catch up. He did not ask to change the child’s school. There is no need to give the father final authority regarding decisions about her education to preserve her French language and heritage.

[79] A joint decision-making responsibility regarding major educational decisions is not realistic is this case. The communication between the parties is far too poor - most of that poor communication is attributable to the father. The parties did not agree on anything at the trial. The father treats the mother with disdain. Joint decision-making would likely be used by him as a method to control and undermine the mother. It is not in the child’s best interests to order this.

[80] The court will make most of the parenting orders requested by the mother. She is the parent who is involved with the child and has made responsible decisions for her, including responsible educational decisions. The mother works well with the child’s schools. The father is difficult, demanding and obstructive when he does not get his own way. He is prepared to act with malice if it meets his needs. He almost prevented the child from going to a camp that has benefitted her. He unreasonably resisted signing a consent for the mother to obtain the child’s passport. He prioritizes his own need to be right to the child’s best interests.

[81] The court has far more confidence in the mother’s parenting judgment. She will be granted sole decision-making responsibility for the child.

[82] The mother will not be required to consult with the father prior to making any major decision for the child. To require this would only expose her to harassment from the father.

[83] The court will make communication orders to protect the child from adult conflict.

3.5 Parenting time

3.5.1 Legal considerations

[84] In determining the father’s parenting time, the court must consider the relevant best interests considerations set out in Part 3.1 above.

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

[86] The most appropriate allocation of time in any given situation will depend on many factors including; the child's age; temperament; stage of development; the relevant schedules and commitments of the child and each parent; and any other considerations relevant to the determination of the child's best interests. The parenting schedule must accord with the child's best interests. See: McBennett v Danis, 2021 ONSC 3610; Drodge v. Gadjadhar, 2025 ONSC 244.

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

[88] The party who seeks to reduce normal parenting time will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See: M.A. v. J.D.; [Dayboll v. Binag, supra].

3.5.2 Analysis

[89] The temporary parenting time order of alternate weekends is not working for the child. The father exercises his parenting time randomly and inconsistently. The child is reluctant to see him and is now making up excuses to avoid him. The father is forceful and can be very difficult to deal with when he does not get his own way. His personality is likely overwhelming for the child. It is understandable why the child is reluctant to engage with him.

[90] The court trusts the mother’s judgment about the father’s parenting time. The court finds she is sincere about wanting to promote their relationship. She is willing to facilitate weekend and holiday time at times when the child feels more comfortable with the father and is more willing to go. She is prepared to encourage the child to see him. Very importantly, she is willing to engage in a therapeutic process to improve the child’s relationship with the father and to encourage the child to participate in this therapy.

[91] The court finds it is not in the child’s best interests to leave parenting time in her discretion. This puts far too much pressure on her. She is ill-equipped to deal directly with the father regarding parenting arrangements.

[92] The court will order that the father’s parenting time shall be in the mother’s discretion, with such discretion to be reasonably exercised. The mother shall take the child’s views and wishes into consideration in exercising that discretion.

[93] The father sought the right to travel with the child outside of Canada. The court will not make that order. The mother shall have discretion over whether the child can travel with the father, and on what terms and conditions.

[94] The court will not order specified parenting time, as requested by the mother. The parenting situation is much too fluid to do so. It is not in the child’s best interests to constrain the mother’s discretion over the times, dates and conditions for parenting time. At times, day parenting time may be appropriate. At other times, overnights and holidays might be appropriate. And, at other times, no parenting time may be appropriate.

[95] The court will not make an order requiring the mother to share in the child’s transportation for parenting exchanges, as requested by the father. The father is exercising his parenting time in too inconsistent a manner to order this. Further, he has been derelict in his financial responsibility to the child. He should incur this expense. The mother has assumed virtually all parenting responsibilities for the child with no help from him. He can assume the responsibility for transportation.

Part Four – Child support

4.1 Positions of the parties

[96] The mother seeks child support, including the father’s proportionate contribution to the child’s section 7 expenses, retroactive to January 1, 2021. She is content to use the income the father reported to the CRA for the years 2021 to 2023, but seeks to impute his annual income at $76,000, starting on January 1, 2024, for the purpose of this analysis. She proposes that the father pay support arrears at $1,000 each month.

[97] The father seeks to pay support starting on July 1, 2021 in accordance with the income he has reported to the CRA. He opposes any imputation of his income.

[98] The father opposes making any contribution to past section 7 expenses of the child. He agrees to pay 50% of any future section 7 expenses for the child that he agrees to in advance.

[99] If past section 7 expenses are ordered, the father asks that the mother pay 50% of the cost of the psychological report he obtained for the child in 2021.

[100] The father seeks retroactive support from the mother from March 2020 until February 2021. He asks that this amount be set off any arrears he owes.

4.2 Start date for child support payable by the father to the mother

4.2.1 Legal considerations

[101] The mother served her application on the father on September 26, 2023. Support since that date is prospective support and is presumptively payable. See: Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 331 (Ont. C.A.). The support claimed by the mother before that date requires a retroactive support analysis.

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

Powers of court
(1) In an application under section 33, 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;

[103] In Colucci v. Colucci, 2021 SCC 24 (Colucci), 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.
b. 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.
c. Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.
d. The court retains 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. 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.
e. 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.

[104] This framework in Colucci addressed 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.

[105] 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. 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[10] 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. See: L.S. v. M.A.F., 2021 ONCJ 554; M.A. v. M.E., 2021 ONCJ 555; A.E. v. A.E., 2021 ONSC 8189; M.K. v. K.M., 2022 ONCJ 424; T.B. v. O.T., 2023 ONCJ 35; V.S.B. v. B.L.O.

[106] Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. See: Michel - par. 25.

[107] Retroactive child support is a debt; by default, there is no reason why it should not be awarded unless there are strong reasons not to do so. See: Michel – par. 132.

[108] Retroactive awards are not exceptional. They can always be avoided by proper payment. See: D.B.S. - par. 97.

[109] In Michel, at paragraph 121, the Supreme Court of Canada emphasized the importance of support payors meeting their support obligations and commented that the neglect or underpayment of support is strongly connected to child poverty and female poverty.

[110] The retroactive support analysis equally applies to claims for retroactive section 7 expenses. See: Smith v. Selig, 2008 NSCA 54; Hetherington v. Tapping, 2007 BCSC 209; Surerus-Mills v. Mills, 2006 O.J. No. 3839 (SCJ); Kovalchuk v. Kovalchuk, 2023 ONCJ 355.

4.2.2 What is the presumptive start date to change support?

[111] The first step in the Colucci framework is to determine the presumptive start date for support to be changed. To determine this, the court must look at when effective notice and formal notice of her support claims were given by the mother to the father.

[112] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair. See: D.B.S., par. 121.

[113] The mother deposed that she made repeated requests for child support after the child returned to her care after the pandemic. She said the child returned to her care in June 2020. The father deposed in his trial affidavit that the child returned to her care on February 21, 2021. This is different than what he claimed in his Answer/Claim and in his Form 35.1 parenting affidavit where he stated that the child returned to the mother’s primary care in mid-January 2021.

[114] The mother is only seeking child support from January 1, 2021, which is later than the date she says she gave effective notice. The court will use that date as the presumptive start date for support.

4.2.3 Should the court depart from the presumptive start date?

[115] The second step in the Colucci framework is to determine if the court should depart from the presumptive start date. The father asks that the court should do this and start child support on July 1, 2021. In making this determination, the court should consider:

1. The reasons for delay
2. Blameworthy conduct
3. The circumstances of the child
4. Hardship to the payor or recipient

4.2.3.1 Reasons for delay

[116] In considering delay, courts should look at whether the reason for delay is understandable, not whether there was a reasonable excuse for the delay. The latter consideration works to implicitly attribute blame onto parents who delay applications for child support. See: Michel, par. 121.

[117] A delay, in itself, is not inherently unreasonable and the mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted. See: Michel, par. 113.

[118] Rather, a delay will be prejudicial only if it is deemed to be unreasonable, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made. See: Michel, par. 86.

[119] In Michel, the court, at paragraph 86, set out what might be understandable reasons for delay in a support recipient coming to court as follows:

a) Fear of reprisal/violence from the other parent.
b) Prohibitive costs of litigation or fear of protracted litigation.
c) Lack of information or misinformation over the payor parent’s income.
d) Fear of counter-application for custody.
e) The payor leaving the jurisdiction or the recipient unable to contact the payor parent.
f) Illness/disability of a child or the custodian.
g) Lack of emotional means.
h) Wanting the child and the payor to maintain a positive relationship or avoid the child’s involvement.
i) Ongoing discussions in view of reconciliation, settlement negotiations or mediation.
j) The deliberate delay of the application or the trial by the payor.

[120] The mother provided understandable reasons for her delay in coming to court. She knows how difficult the father is and how resistant he would be to paying child support. Her focus was on caring for the child. She did not want to engage with the father in litigation. Her fears were borne out by the father’s conduct. He delayed this proceeding by not filing his Answer/Claim and financial disclosure. He was given multiple filing extensions, and four court orders were made for him to provide his financial disclosure. He unreasonably increased the cost of this litigation.[11] He also spent most of his time attacking the mother in this case and tried to weaponize the police and the Children’s Aid Society against her.

4.2.3.2 Blameworthy conduct

[121] Courts should apply an expansive definition of blameworthy conduct. See: D.B.S., par. 106.

[122] Blameworthy conduct is anything that privileges the payor parent’s own interests over his or her children’s right to an appropriate amount of support. See: D.B.S., par. 106.

[123] The failure of a payor to disclose actual income, a fact within the knowledge of the payor, is blameworthy conduct that eliminates any need to protect the payor’s interest in certainty. See: Michel, par. 34.

[124] The father has engaged in blameworthy conduct by:
a) Not paying any child support until ordered to do so on April 10, 2024.
b) Choosing to purchase a Porsche vehicle the month after the mother started this case instead of paying her any child support.
c) Only partially paying the support ordered.
d) Delaying the case.
e) Delaying the production of basic financial disclosure.

4.2.3.3 Circumstances of the child

[125] There are plenty of circumstances where a parent will absorb the hardship that accompanies a dearth of child support to prioritize their child’s well-being. There is absolutely no principled reason why this parent should receive any less support as a result of choices that protect the child. See: Michel - par. 123.

[126] The child’s circumstances have been disadvantaged due to the father’s failure to pay adequate support. The mother has incurred significant debt to support her and pay for special services to meet her needs.

4.2.3.4 Hardship

[127] If there is the potential for hardship to the payor, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of hardship. In all cases, hardship may be addressed by the form of payment. See: Michel, par. 124.

[128] While the focus is on hardship to the payor, that hardship can only be assessed after taking into account the hardship which would be caused to the child and the recipient parent from not ordering the payment of sums owing but unpaid. See: Michel, par. 125.

[129] The father will suffer some financial hardship with a retroactive support order. This can be addressed through a payment order. The mother will suffer financial hardship if a retroactive support order is not made.

4.2.3.5 The start date for support

[130] The court will not depart from the presumptive start date of January 1, 2021.

4.3 Quantification of support

[131] The third and final step in the Colucci analysis is to quantify the proper amount of support for each year since the start date of retroactivity, calculated in accordance with the guidelines.

4.3.1 The evidence about the parties’ incomes

[132] The father filed his notices of assessment for 2021 to 2023. At trial, he produced a copy of his 2024 income tax return. These documents set out annual income that generate monthly guideline table amounts as follows:[12]

2021
$75,136
$701 each month

2022
$69,492
$649 each month

2023
$62,126
$577 each month

2024
$43,695
$403 each month

[133] The mother filed her 2021 to 2023 income tax returns and her 2024 T4 statement. They show the following annual income:

2021
$64,892

2022
$65,492

2023
$69,277

2024
$67,601

[134] The mother claims that the father has been deliberately underemployed since January 1, 2024 in an attempt to reduce his support obligations. She also feels that the father is likely earning unreported cash income based on his lifestyle.

[135] The father deposed he belongs to a union. He said he can only work when called upon. He testified that his income has gone down because of the slowdown in the construction industry. He said he is currently unemployed. He stated that he is not receiving Employment Insurance due to a dispute with a previous employer. He denied receiving unreported cash income.

4.3.2 Legal considerations in imputing income

[136] Section 19 of the guidelines permits the court to impute income to a party as it considers appropriate.

[137] The jurisprudence for imputation of income sets out the following:

a) Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli, [2002] O.J. No. 3731 (Ont. C.A.).

b) The Ontario Court of Appeal in Kohli v. Thom, 2025 ONCA 200, affirmed that the following three questions should be answered by a court in considering a request to impute income:

1. Is the party intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by virtue of his or her reasonable educational needs, the needs of the child or reasonable health needs?
3. If not, what income is appropriately imputed?

c) The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552 (Ont. C.A.). However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.

d) 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.

e) Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them. See: Szitas v. Szitas, 2012 ONSC 1548; Woofenden v. Woofenden, 2018 ONSC 4583.

f) 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 (C.A.), at paras. 33-35; Gostevskikh v. Gostevskikh, 2018 BCSC 1441 (S.C.); M.A.B. v. M.G.C., 2022 ONSC 7207.

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

h) 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.

i) A person’s lifestyle can provide the basis for imputing income. See: Aitken v. Aitken [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373.

4.3.3 Analysis

[138] The father is paid well. He is an experienced heavy equipment operator. He earns over $51 an hour as his basic pay.

[139] The court finds that the father is earning or is capable of earning more income than he has declared to the CRA in 2024 and that he claims he has earned in 2025. It finds he has been deliberately unemployed or underemployed, or that he is earning additional unreported cash income.

[140] The father was not credible regarding the financial issues, as described in paragraphs 60 and 124 above.

[141] The father claimed he was unemployed when he prepared his Answer/Claim and financial statement in April 2, 2024. He represented he had not been working since October 2023. At this trial, he also said he was not currently working and did not know when he would work again.

[142] The father is determined to avoid his support obligations for the child. He has delayed this case and obstructed the mother’s efforts to obtain support from him. The court finds that he is capable of earning more income than he has been earning since January 1, 2024. The father provided no evidence of jobs offered to him by the union. The court finds it more probable than not that he has been declining work to reduce his income in the hope it will reduce his child support obligations.

[143] Also, the father’s financial statements filed in this case do not support his claim that his income has gone down. In his financial statement sworn on April 2, 2024, the father declared that his only asset was his Porsche (no value given) and he had debts of $118,000. In his financial statement sworn on February 27, 2025, the father’s debts are down to $89,970, despite declaring that his annual expenses are $197,896.

[144] The math does not work for the father. He could not be meeting these expenses while reducing his debt on an income of just over $43,000. Based on his numbers, his debts should have skyrocketed, not gone down.

[145] The logical inference is that the father has earned much more income than he has claimed. It is very possible that he is receiving cash income to support his lifestyle.

[146] The court has considered that the father likely exaggerated his annual expenses in the mistaken belief that this would show he could not pay the child support requested by the mother. Otherwise, it would have imputed a much higher income to him. See Sarafinchin v. Sarafinchin, [2000] O.J. No. 2855 (Ont. S.C.); Prillo v. Homer, 2023 ONCJ 8.

[147] The mother seeks to impute annual income of $76,000 to the father. That is high. He has not earned that level of income since 2021.

[148] The court will impute income to the father, based on his 2023 income of $62,216, starting on January 1, 2024. He should consider himself fortunate that the court is primarily making this finding based on his deliberate underemployment. If it had primarily based its decision on his receiving cash income, it would have grossed up his income for his failure to pay taxes on the excess unreported income and his support liability would have been much higher.

4.4 Calculation of table support and amounts owing

[149] The following guidelines table amounts have accumulated based on this court’s findings:

2021
$701 x 12 months on an income of $75,136
= $8,412

2022
$649 x 12 months on an income of $69,492
= $7,792

2023 - April 2025
$577 x 28 months on an income of $62,126
= $16,156

Total:
= $32,356

[150] The father did not contest the amounts the mother stated he has paid since the April 10, 2024 order of Justice Jones. She said he has paid $4,125.

[151] The balance of guidelines table support owing by the father to the mother is $28,231 ($32,356 - $4,125).

Part Five – Section 7 expenses

5.1 Positions of the parties

[152] The mother claimed past section 7 expenses of $61,557, broken down as follows:

Camp Kodiak (2022 to 2024)
$29,020

Brighton private school, including tutoring
$28,390

Piano lessons
$1,761

Swimming lessons
$2,385

[153] The mother asked that the father pay her $33,000, as his proportionate contribution to these expenses.

[154] The father claims he should not have to pay anything towards these expenses because:
a) The expenses are not reasonable or necessary.
b) He was not consulted about any of these expenses before they were incurred.
c) He cannot afford these expenses.

[155] The mother estimated the child’s ongoing section 7 expenses at $12,000 annually, comprised of Camp Kodiak, tutoring, and extraordinary extracurricular activities. She asks that the father pay his proportionate share of these expenses.

[156] The father said he is willing to pay 50% of ongoing section 7 expenses, but only if he consents to them in advance.

5.2 Legal considerations

[157] The relevant provisions of the guidelines regarding section 7 expenses are as follows:

7 (1) In child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:
(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least of $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
7 (1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means
(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account
(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant.
7 (2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.
7 (3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

[158] Unlike section 3 of the guidelines, which presumptively provides for the table amount of child support, an order for section 7 expenses involves the exercise of judicial discretion. See: Park v. Thompson, 77 O.R. (3d) 601, (Ont. C.A.).

[159] In Titova v. Titov, 2012 ONCA 864, the court set out the following framework for determining a party’s contribution to a child’s section 7 expenses:

a) Calculate each parties’ income for child support purposes.
b) Determine whether the claimed expenses fall within one of the enumerated categories of section 7 of the guidelines.
c) Determine whether the claimed expenses are necessary “in relation to the child’s best interests” and are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.”
d) If the expenses fall under paragraphs 7 (1) (d) or (f) of the guidelines, determine whether the expenses are “extraordinary” as defined by subsection 7 (1.1) of the guidelines.
e) The court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits.
f) The court determines the proportions that each party should contribute to the expenses, with the guiding principle being that the expenses will be shared in proportion to their incomes.

[160] 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 section 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances. See: Park v. Thompson, supra.

[161] Reasonableness and necessity are assessed in context, having regard to the child’s needs, the family’s circumstances and the nature of the expense. The necessity of an expense is linked to the child’s best interests, including their emotional, physical and social development. Extracurricular activities may support self-esteem and social interaction. See: A.E. v. A.E., 2021 ONSC 8189.

[162] Where the expense is not within the means of the parties, the court may limit or deny recovery of that amount. See: Ebrahim v. Ebrahim, [1997] B.C.J. No. 2039 (SCJ); L.H.M.K. v. B.P.K., 2012 BCSC 435, [2012] B.C.J. 593 (SCJ); Simone v. Van Nuys, 2021 ONCJ 652.

[163] Section 7 itself does not require prior consultation for allowable expenses, but a failure or refusal by a claiming parent to discuss an expense with the other parent in advance bears on the court’s exercise of its discretion in determining whether it is reasonable. However, where consultation would be meaningless due to chronic default of payor, or attitude of payor, prior consultation should not be required. See: Yeo v. Hutcheson, 2020 ONSC 1256.

[164] The court has the discretion to apportion the section 7 expense in a different manner than pro-rata to the parties’ incomes, depending on the circumstances of the case. See: Hamilton v. Salmon, 2023 ONCJ 343, per Justice Danielle Szandtner; Salvadori v. Salvadori, 2010 ONCJ 462, [2010] O.J. No. 4425 (OCJ); Buckley v. Blackwood, 2019 ONSC 6918.

[165] The court may consider the parties’ capital assets, income distribution, debts, third party resources, access costs, support obligations, receipt of support and any other relevant factor. See: Delichte v. Rogers, 2013 MBCA 106.

5.3 Eligible section 7 expenses

[166] The court finds that all the expenses claimed by the mother fall within one of the enumerated categories of section 7 of the guidelines. The court finds that the piano and swimming expenses are extraordinary extracurricular activities as defined by subsection 7 (1.1) of the guidelines. They are more than the mother can reasonably cover based on her income and the table amount of support being paid by the father. The extracurricular activities are even less affordable for her because she needs to pay for Camp Kodiak.

[167] The court finds that the section 7 expenses claimed by the mother are both necessary and reasonable. She is doing her best to give the child every opportunity to succeed. She has done this by making financial sacrifices, going into considerable debt.

[168] Camp Kodiak specializes in children with autism and other neurological difficulties. It provides the child with the opportunity to learn social skills in a structured environment. The staff include a physician, two nurses, adaptive physical education specialists and special education teachers. The camp includes academic tutoring, language training and social skills training. It has a 2:1 camper to staff ratio. The court accepts the mother’s evidence that the child has thrived in this program.

[169] The court also accepts the mother’s evidence that attending Brighton in grade 7 was highly beneficial for the child. This was a school that specializes in children with autism, developmental delay and learning difficulties. It provided the child with an IEP. The average student to teacher ratio is 6:1. The child’s report cards show that she did much better in this program than she did at the Catholic French school. It gave her the confidence and foundation to succeed in her present private school.

[170] The court recognizes Brighton and Camp Kodiak are very expensive at the parties’ income level. However, this is a critical time in the child’s development. It is reasonable for the parents to incur some debt to give her the best chance to succeed. It is a worthwhile investment in the child’s future.

[171] The court finds that the piano and swimming expenses for the child were also reasonable and necessary. It is necessary for the child to learn social skills and participate in activities to meet her potential. The cost of these programs was reasonable.

5.4 What amount should the father contribute to the child’s past section 7 expenses?

[172] The father provided an amended invoice from Brighton. It shows that the total expense for the school was $24,258, not $28,390. This reduces the total section 7 expenses claimed by the mother to $57,425 ($61,557 - $4,132).

[173] This leads to what amount the father should be required to pay towards these section 7 expenses. The guiding principle is that he should pay his proportionate amount of the net amount of these expenses.[13] However, the court has the discretion to order an amount different than this.

[174] Since the child has a disability, the mother is entitled to deduct up to $11,000 each year on her income tax return for childcare expenses she incurs, as opposed to the annual $5,000 amount ordinarily permitted. She is also entitled to other tax benefits and credits as the child’s primary caregiver.

[175] The mother presented her calculations seeking a proportionate contribution to the gross amount of the child’s section 7 expenses. She is only entitled to a contribution to the net amount of these expenses, after taking into account any tax credits or benefits attributable to the section 7 expenses.[14]

[176] Neither party provided software calculations regarding the net amount of the section 7 expenses. This means the court’s calculation of the father’s contribution to the child’s section 7 expenses will be imprecise.

[177] It is important for the parties to know that the tax credits and benefits for a child entitled to disability tax credits, at the mother’s income level, are significant. The court will attach to this decision a software calculation for 2025 that demonstrates that the father’s share of the child’s gross section 7 expenses, after taking into consideration these tax benefits and credits is only 17.1%.

[178] The father earned more income in 2021 and 2022. His percentage share of the child’s section 7 expenses would have been higher in those years. The court will order that the father shall pay 19% towards the child’s past gross section 7 expenses claimed by the mother. This comes to $10,910 ($57,425 x .19).

[179] The court considered that the mother consulted in a limited manner with the father before she incurred these expenses. It became apparent at trial why she did this. The father never would have agreed to the child attending Brighton or Camp Kodiak. He would have opposed Brighton because it was not a French school and because it was expensive. He would also have never agreed to the Camp Kodiak expense.

[180] The mother’s concerns about consulting with the father went beyond financial concerns. She knew he would actively attempt to disrupt the child’s attendance at Brighton and at Camp Kodiak if given the opportunity. The father tried to do this with Camp Kodiak. The camp had to get its lawyers involved. The court will not discount the father’s section 7 expense contribution due to this factor.

[181] The father paid for the child’s psychological report in 2021. The total cost of that report was $3,270. The father will be given credit for this. It was reasonable and necessary for the child. Based on their respective 2021 incomes of $75,132 for the father, and $64,892 for the mother, the mother’s share of this expense is $1,514 (46.3%).

[182] The court finds that the father owes the mother $9,396 ($10,910 - $1,514) for past section 7 expenses. This brings the total amount of arrears owing by the father to the mother to $37,627 ($28,231 + $9,396).

5.5 What amount should the father contribute to the child’s ongoing section 7 expenses?

[183] The court will order a specific monthly amount for ongoing section 7 expenses. If the court does not specify the amount, it will lead to disputes between the parties about what is owed.

[184] The court will not require the mother to obtain the father’s consent before incurring a section 7 expense for the child. The court has no confidence the father will reasonably consent to them. This would only lead to conflict.

[185] The court finds that the annual amount of $12,000 claimed by the mother for ongoing section 7 expenses is reasonable, necessary and affordable for the child. This is comprised at this time of the camp expenses of about $9,000, tutoring expenses of about $2,000 and extracurricular activities of about $1,000.

[186] Based on their present incomes, the mother shall pay 52.1% of the net amount of these expenses and the father shall pay 47.9% of them. The software calculation attached to this decision shows that the father’s monthly payment towards the section 7 expenses is $171 each month. This will be ordered.

Part Six – The father’s claim for retroactive child support from the mother

[187] At trial, the father claimed retroactive support from the mother starting from March 1, 2020 until February 21, 2021.

[188] This request is denied.

[189] The father did not plead this relief in his Answer/Claim. It is fundamental to the litigation process that lawsuits be decided within the boundaries of the pleadings. See: Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74, [2002] O.J. No. 1365 (C.A.); Ebba v. Sherriff Jalloh, 2025 ONCJ 127. The court has discretion to hear a claim not pled; however it declines to do so in this case because:
a) There were multiple court attendances and the father never sought to amend his Answer/Claim to claim this relief.
b) The father paid no child support to the mother from September 2018 until March 2020, when the child was in the mother’s primary care. The mother is not making a retroactive support claim for that period.
d) Following the Colucci framework, the father did not give effective notice of this claim until trial. The date of trial is the presumptive start date – well after the date when the father asks for retroactive support to start. The court will not depart from this presumptive date because:
i) The father did not provide a reason for delay.
ii) The father has engaged in blameworthy conduct as described in paragraph 124 above.
iii) The father provided no evidence that the circumstances of the child were disadvantaged because the mother did not pay child support; and
iv) The father provided little evidence of hardship if he does not receive retroactive support.

[190] No further adjustments will be made to the arrears of $37,627 owing by the father to the mother.

Part Seven – Payment of arrears

[191] The mother asks that the father pay the support arrears created by this order at $1,000 each month. The father did not make a proposal for payment of arrears.

[192] The court recognizes that this order will place a financial burden on the father. He should sell his Porsche. However, even if he does this, money will still be tight for him.

[193] The court will permit the father to pay the arrears at $500 each month. This will give him over six years to pay them. However, he must keep his ongoing and arrears payments in good standing to maintain this indulgence from the court. If he is more than 30 days late in making any of these payments the full amount of child support arrears then owing shall immediately become due and payable.

Part Eight – Conclusion

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

Primary residence and decision-making responsibility

a) The child shall have her primary residence with the mother.
b) The mother shall have sole decision-making responsibility for the child.
c) The mother may obtain and renew all government documentation for the child, including passports, birth certificates and health cards, without the father’s consent.
d) The mother may travel internationally with the child, without the father’s consent.
e) The father is free to educate the child about her French language, culture and heritage when exercising his parenting time with her.

Parenting time

f) The father’s parenting time with the child shall be in the sole discretion of the mother, such discretion to be exercised reasonably. The mother shall have sole discretion over the times, dates, locations and duration of the parenting time. She shall have discretion over whether the child can travel with the father, and on what terms and conditions.
g) The mother shall take the child’s views and wishes into consideration in exercising her discretion.

Communication

h) The parties shall communicate in writing only through a parenting communication application, such as AppClose.
i) The father shall not call the mother at her place of her employment. He shall not attend at her place of employment.
j) The communications between the parties should be brief, respectful, and only relate to issues pertaining to the child.
k) Each party shall respond within 48 hours of any communication from the other party, provided it is related to the child, except in an emergency.
l) The parties shall keep each other informed as to their current contact information, including their telephone number, email address and residential address.
m) If the child becomes ill or in need of medical assistance while in the care of one party, that party will notify the other party as soon as it is reasonably possible.
n) Neither party shall make negative comments about the other party in the presence of the child.

Child support

o) The father shall pay child support to the mother in the amount of $577 each month, starting on May 1, 2025. This is the guidelines table amount for one child, based on an imputed annual income to him of $62,126.
p) In addition, the father shall pay the mother $171 each month for the child’s section 7 expenses (Camp Kodiak of about $9,000, tutoring expenses of about $2,000 and extracurricular activities of about $1,000), starting on May 1, 2025. This is based on the father’s imputed annual income being $62,126 and the mother’s annual income being $67,601.
q) The father’s support arrears are fixed at $37,627, as calculated in this decision. The father may pay these arrears at $500 each month, starting on May 1, 2025. However, if he is more than 30 days late in making any ongoing support payment or arrears payment, the entire amount of arrears then owing shall immediately become due and payable.
r) The father shall receive credit against the arrears owing for any support payment he made in April 2025, but only as reflected in the records of the Director of the Family Responsibility Office (the Director).
s) The Director is requested to adjust its records in accordance with this order.
t) Nothing in this order precludes the Director from collecting arrears from the father from any government source (such as income tax, GST/HST returns), lottery or prize winnings or inheritances.
u) Starting in 2026, the parties shall provide each other, by June 30th each year, with complete copies of their income tax returns, including all schedules and attachments, and copies of their notices of assessment. The mother shall provide the father with copies of invoices for all section 7 expenses incurred during the previous year.
v) A support deduction order shall issue.

Other orders

w) The mother is the successful party in this case. If she seeks costs, she shall serve and file her written costs submissions by May 7, 2025. The father will then have until May 21, 2025, to serve and file his written response. The submissions shall be no more than 3 pages, not including any bill of costs or offer to settle. The submissions may be delivered to the trial coordinator’s office on the second floor.
x) All other claims by the parties not dealt with above are dismissed.

Released: April 23, 2025

Justice Stanley B. Sherr

[1] The father proposed that he have joint decision-making responsibility for the child in his draft order.
[2] The father did not seek an order that he have final say over the child’s major educational decisions in either his draft order or in his opening statement. He changed his position during his testimony.
[3] The father sought four weeks with the child during the summer in his draft order – he changed that to five weeks at trial.
[4] The father took a different position in his draft order. He wrote, “if needed, child support can be calculated per provincial guidelines, considering shared parenting time”.
[5] The father did not plead this relief or seek it in his draft order.
[6] The mother said the child had been vaccinated so she could attend school. It was also one of the camp’s requirements.
[7] The mother acknowledged that the child missed a lot of school days for illness for two years. She said she only missed 10 days of school in grade 7 and even fewer days in grade 8.
[8] The court commends the father for obtaining this report.
[9] The court has initialized the mother’s name.
[10] See: D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37. These factors are:

1. Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
2. The conduct of the payor parent.
3. The circumstances of the child.
4. The hardship that the retroactive award may entail.
   [11] The mother had counsel until the October 28, 2024 court appearance.
   [12] The court deducted the father’s union dues from his gross income as required by Schedule 111 of the guidelines. The father did not file his 2021 to 2023 income tax returns, so the court does not know the specific amounts he deducted for union dues in those years. It will deduct $1,430 from his income for those years. This is the amount deducted in his 2024 income tax return that he filed at trial.
   [13] See subsection 7 (2) of the guidelines.
   [14] See subsection 7 (3) of the guidelines.